Myers v. Koenig
5 Neb. 419
Neb.
1877
Check Treatment
Gantt, J.

Upon error to the district court, the judgment of the justice of the peace in this case was reversed, and the cause was dismissed on the ground that, in the trial before the justice, title to real estate was drawn in question so as to oust the jurisdiction of the justice over the subject matter. This is the controlling question in the case, and the only one it is deemed necessary to notice. Title XXX, Chap. 1, of the civil code defines the jurisdiction of justices of the peace, and provides that they shall not have cognizance of “ actions in which title to real estate is sought to be recovered, or may be drawn in question, except actions of trespass on real estate, which are provided for in this title.” The only action of trespass upon real estate provided for in this title, is that for trespass vi et armis, under Chap. 10, entitled “action for forcible entry and detention, or forcible deten-' tion only of property.” Hence, it seems that the restraint of jurisdiction, contained in the law referred to, *422was not intended to apply to actions brought under Chap. 10 for forcible entry into and detention of real estate. The jurisdiction given in such actions is well founded in the principles of jurisprudence, and is not in conflict with the constitution, for the complaint sets forth an injury or wrong criminal in its nature, and the gravamen of the action is, the imlawftol and forcible entry into and detention of real property. Therefore the title to real estate cannot be drawn in question on the trial of such action; and it is expressly provided in the law that the judgment in such action of trespass shall not be a Ijar to any after action brought by either party. In Mitchell v. Davis, 23 Cal., 385, it is said that “if the defendant has any title or right of possession, it must be tried in some other action proper for trying such questions, but the present is not an action of that kind. He was not justified in attempting to force any such right by taking forcible possession of the land in dispute. He must first deliver up the possession thus forcibly acquired, and then he may be in a situation to litigate, in a proper action, any valid right or title he may have to the land. One great object of the forcible entry act is to prevent even rightful owners from taking the law into their own hands and attempting to recover by violence, what the remedial powers of a court would give them in a peaceful. mode. 3 Black. Com., 179. Carroll v. O'Conner, 25 Ohio State, 617. Jarvis v. Hamilton, 16 Wis., 580.

The judgment of the district court must be reversed, and the judgment of the justice of the peace in favor of plaintiff and against defendant is affirmed.

Judgment accordingly.