146 N.W. 544 | N.D. | 1914
This is an action in forcible entry and detainer begun in justice court, wherein judgment was rendered in plaintiff’s favor and from which an appeal on both law and fact was taken to the district court, where on motion of the defendant, appellant, the action was dismissed on an objection to the jurisdiction made, and overruled in the justice court. The objection raised anew and sustained in the district court as determinative of the issue was “that no notice to quit had ever been served on the defendant and filed with the justice of the peace and returned the same as a summons in a civil action, before the commencement of this action for forcible entry and detainer in justice court.” The district court held the motion good, and dismissed the action, with costs. The complaint in justice court, among other things, recites: “That the defendant has no right to the use or occupancy of said lot 10 or any part thereof, but is occupying part thereof as a trespasser, wilfully, unlawfully, and forcibly, to the exclusion of the owner thereof,” the plaintiff. The circumstances of the possession are recited, it appearing that the defendant has erected a house extending 7|- feet upon plaintiff’s property, and has refused on demand