Lyman v. Stanton, 39 Kan. 443

Lyman v. Stanton

39 Kan. 443 | Kan. | 1888

Opinion by

Clogston, C.:

In an action before a justice of the peace, where it is made to appear to his satisfaction that the title or boundaries of land are in dispute, he shall stay proceedings and certify the cause to the district court. And when so certified to the district court, that court shall try the cause as though originally commenced there. (Comp. Laws of 1885, ch. 81, § 7.) But where the justice is not so satisfied, or is mistaken in relation to the nature of the action, and retains the same for trial, and judgment is rendered against the defendant, and he appeals the cause to the district court, that court has jurisdiction to hear and determine the cause as though it had been properly certified there by the justice. (Douglass v. Easter, 32 Kas. 496.)

*445In Wagstaff v. Challiss, 31 Kas. 212, it was held that the district court, on appeal from a justice of the peace, took only appellate jurisdiction, and had no original jurisdiction; but that case is not applicable to the facts here. In that case the defendant filed a counterclaim for $3,000, and did not offer to set off the excess above the jurisdiction of the justice, and therefore, as the justice had no jurisdiction to hear the cause, the appeal to the district court gave to that court no jurisdiction to hear and determine the counterclaim. In this case, however, the justice of the peace did have jurisdiction to do what was done; to send the case to the district court, to be tried as though originally commenced in that court. The manner of sending it there was disregarded, but that was not material; when it reached the district court that court should have heard the case on its merits. The only way the defendant could correct the errors occurring before the justice of the peace was to have made a bill of exceptions, and brought the matter to the attention of the court by petition in error. This was not done, and therefore the district court had no authority to correct any of the errors occurring at the trial before the justice of the peace.

The questions whether or not the title to land was in dispute, and whether the defendants’ answer set up a defense to the plaintiffs’ claim, are not material in this inquiry, and therefore we express no opinion.

It is thei’efore recommended that the cause be reversed and remanded with the order that the cause be reinstated and held for trial by the district court.

By the Court: It is so ordered.

All the Justices concurring.