| Colo. | Feb 15, 1873
1. It is insisted that the court below erred in overruling the motion interposed by the plaintiff in error to quash the complaint. It is sufficient to say as to this, that by pleading over, the error in this ruling, if any, was waived.
2. It is argued that the court below erred in receiving the transcript of the justice’s judgment, through the execution, upon which, out of the district court, the plaintiff below claimed : as ground of objection to this transcript, it is said it nowhere appears thereby that the subject-matter of the action before the justice was within his jurisdiction. The statute (R. S., ch. L, § 4) requires that the justice shall note upon his docket, “the amount and nature of the debt sued for,” which we conceive amounts to a requirement that the nature of the cause of action shall be set forth. This provision of the statute was not complied with in this instance, so that, in truth, there was nothing to show whether the matter adjudicated before the justice was or was not within his jurisdiction, unless we refer to the circumstance that the judgment was on a sum certain for the plaintiff’s debt; and this, it appears to us, is not entitled to consideration upon the question of jurisdiction. Barnes v. Holton, 14 Minn.
It follows from this that the transcript offered in evidence, though not in itself sufficient to establish the jurisdiction of the justice, or the validity of the judgment therein set forth, was admissible, for it rested in the discretion of the court below, to require proof of the jurisdiction in the first instance, or after the transcript of judgment had been received. In the admission of this evidence, therefore, there was no error. It is true that proof of the jurisdiction should have been required, and that none was produced; but the defendant below omitted to except to judgment, and cannot be heard now to question the sufficiency of the evidence upon which that judgment is based. Phelps v. Spruance, 1 Col. 414.
3. It was further argued that the action of wrongful detainer does not lie in cases like the present. While it may well be questioned whether the broad language of the section upon which the defendant in error relies (R. S., ch. 35, § 3), reaches to all cases of wrongful detainer of lands (which would be in effect, to supersede with this summary remedy the action of ejectment), we think it cannot be doubted that it includes, at least, that class of cases where privity exists between the parties, and the withholding possession is in violation of an express or implied promise to surrender; or a duty implied by the law from the relation of the parties ; for example, where the tenant holds over his time, where the vendee, having obtained possession, refuses to proceed with his purchase ; or where the judgment debtor retains possession after the period of redemption has expired, and the sheriff’s deed has passed. If the section
The present case is analogous to the one last suggested; for the court below has, in effect, found that the conveyance of the judgment debtor, under which plaintiff in error claimed, was fraudulent, and that the plaintiff in error purchased with knowledge of the fraud; he stands, therefore, precisely in the situation of the judgment debtor.
The fourth section of the statute, it is true, appears to have been intended as a qualification of that which precedes ; and to afford this action, only in cases where the detainer is not only unlawful, but in bad faith, and without tona fide claim of right; and in this case it cannot confidently be said, that the possession of the defendant below is shown to be of this character. But if we admit that no proof of a detainer, in bad faith, was produced, the plaintiff' in error is again met by the objection, that no exception to the judgment was reserved; and that therefore the insufficiency of the evidence cannot be assigned for error.
The other errors assigned not having been noticed on the argument, we shall not consider them.
The judgment of the probate court is affirmed, and the defendant in error will recover his costs.
Affirmed.