99 P. 121 | Idaho | 1909
On November 12, 1906, plaintiff and defendant entered into an agreement whereby the defendant agreed to sell and the plaintiff agreed to purchase certain real property. The agreement, among other things, provides:
“That the said party of the first part, in consideration of the covenants and agreements of the said party of the second part, hereinafter contained, hereby sells and agrees to' convey unto said party of the second part, or her assigns, by deed of warranty, upon the prompt and full performance of said party of the second part of her part of this agreement, the following described premises, .... to wit: .... And said party of the second part, in consideration of the premises, hereby agrees to pay said party of the first part, as and for the purchase price of said premises, the sum of $200 Dollars, in the manner and at the times following, to wit:
“The sum of $50 Dollars in cash at the time of the execution of this agreement, the receipt whereof is hereby acknowledged, and the sum of $150 Dollars, to be paid said first party one year from date hereof, which said deferred payment is evidenced by a certain promissory note for said amount, executed and delivered by said second party to said first party, bearing even date herewith, payable one year from the date hereof to the order of said first party.
“It is understood and agreed that said note, together with a copy of this agreement, shall be deposited in escrow with the Citizens’ State Bank of Mountain Home, Idaho, and that said note shall be delivered to said first party when he shall deposit with said bank a good and sufficient warranty deed to the above-named premises, which said deed shall also be held in escrow by said bank until said note shall have been*661 fully paid, and when said note shall have been fully paid, said bank shall deliver said deed to said second party or her assigns. Said party of the second part further covenants and agrees to pay all taxes and assessments that may be hereafter levied or assessed upon said premises.
“It is also agreed and understood, that in case of failure of the said second party to pay or cause to be paid to the said first party, the note and interest as herein provided, when due, that the party of the first part reserves the right to give notice in writing to the party of the second part, such notice to be properly addressed to the last known postoffice address of the said party of the second part, demanding payment within sixty days of date, when same becomes due, and if at the expiration of the sixty days, the said party of the second part, shall not have paid said note and interest, then this contract shall become null and void, and the property shall revert to the party of the first part, his heirs and assigns. ’ ’
The plaintiff brought suit in the justice’s court of Mountain Home precinct, in Elmore county, state of Idaho, upon this contract, to recover damages for a breach thereof. General allegations were made setting forth the contract; the payment of $50 at the date of the execution thereof; the execution of the note; and alleged that defendant wrongfully and fraudulently failed, neglected and refused to deliver said note to the Citizens’ State Bank of Mountain Home, Idaho, or place the same in escrow with the said bank, but, on the contrary, wrongfully and fraudulently sold and negotiated said note to the Bank of New Rockford, New Rockford, North Dakota; that on November 13, 1907, plaintiff paid $150 principal and $9 interest on said note, according to the terms thereof, to the bank of New Rockford; that on February 3, 1908, plaintiff demanded of the defendant a good and sufficient warranty deed to the land described in the said agreement according to the terms thereof; that the defendant refused, and still refuses, to give a deed to said land and premises; that defendant did not own or have any title in or to the land described in the said agreement hereinbefore set forth on the said 12th day of November, 1906; does not now
Judgment was asked for in the sum of $281 with interest. To this complaint the defendant filed a demurrer upon the ground “That it appears upon the face of said complaint that this court has no jurisdiction of the subject matter of this action, for the following reasons, to wit:
“First. That said action puts in issue the title of real property.
“Second. That said action is an equitable action.”
The demurrer was overruled by the justice and the defendant declined to answer. His default was entered, and thereupon judgment was rendered in favor of the plaintiff for the sum of $216.17 and costs of suit. An appeal was taken from this judgment to the district court on questions of law
Art. 5, sec. 22, of the constitution of this state, provides:
“Justices of the peace shall have such jurisdiction as may be conferred by law, but they shall not have jurisdiction of any cause .... where the boundaries or title to any real property shall be called in question.”
Sec. 3851, Rev. Stat., defines the civil jurisdiction of justices’ courts in this state, and sec. 3852 provides: “The jurisdiction conferred by the last section shall not extend, however, to a civil action in which the title or possession of real property is put in issue.” It will be observed that the language of the constitution is that justices of the peace shall not have jurisdiction “where boundaries or title to any real property shall be called in question,” while the language of the statute is that the jurisdiction conferred shall not extend to civil actions “in which the title or possession of real property is put in issue.” The phrases, “called in question,” and “put in issue,” evidently are intended to have the same meaning and application, and that is, that justices’ courts have no jurisdiction of an action in which the title to real property must necessarily be determined. If, then, this is an
We are of the opinion, therefore, that the allegations of' the complaint do not show that the question of title is involved or presented as an issue, or that it is necessary to-determine the question of title in order for the plaintiff to »
If the complaint discloses upon its face that, in order for the plaintiff to recover, it is necessary for the justice’s court to receive evidence as to title or determine the question of title to real property, then the complaint itself discloses the want of jurisdiction in the justice’s court to try such action, and when the complaint makes such disclosure and a demurrer is filed to the complaint challenging the jurisdiction of such court on that ground, it should be sustained. One of the grounds pointed out by the statute for a demurrer (Rev. Stat., sec. 4174, subd. 1) is: “That the court has no jurisdiction of the person of the defendant or the subject of the action.” If the complaint upon its face discloses that the court, in which the action is brought, has no jurisdiction of the subject matter, then a demurrer to the complaint upon that ground is proper and clearly authorized by the statute. The elementary rule is, that the facts constitute the test of jurisdiction upon any cause brought' in the court, and if the facts as disclosed by the complaint show that the court has no jurisdiction of the subject matter, and a demurrer is addressed to the complaint upon that ground, it should be sustained, and the court is not required to wait until a verified answer is filed in order to determine the question of jurisdiction. (King v. Kutner-Goldstein Co., supra; Hicks v. Claremont Paper Co., 74 N. H. 154, 65 Atl. 1075.) If, however, the complaint does not show upon its face that the subject matter is such that the court, in which the action is brought, has no jurisdiction of the same, then such question can only be raised
The judgment is affirmed. Costs awarded to respondent.