142 N.W. 44 | N.D. | 1913
This action was begun in justice court to recover a money judgment in an amount within the jurisdiction of that court to determine. Service of summons upon defendant was had, who, on return day, appeared in person and gave the justice $1 -and an affidavit of prejudice and demand for change of venue, as required under §§ 8375 and 8377, Rev. Codes 1905, which the justice received but refused to file, because an additional fee of 10 cents therefor was not paid him. Defendant did not further participate in proceedings in justice court, which court thereafter ignored the attempt at obtaining a change of venue and entered up judgment against defendant, who subsequently appealed to the district court by a general appeal upon both law and fact, and demanded in his notice of appeal a trial do novo in the district court. Defendant, also, with his notice and undertaking on appeal, served a verified answer containing a statement, that it was served, because required by statute to confer jurisdiction upon appeal for any purposes, but attempting to reserve the right in district court to make thereunder a special appearance to except to the jurisdiction of that court. Thereafter the district court, on defendant’s default, tried the cause, made findings and conclusions, and ordered judgment in favor of plaintiff, and on October 3, 1910, judgment for $76.98 was entered. Subsequently, on September 8, 1911, on defendant’s application after due notice, the district court, on motion to vacate and to dismiss for lack of jurisdiction of the subject-matter of the suit, set aside its judgment, and granted a new trial, and ordered that the case stand for trial and final disposition upon the regular December, 1911, calendar of the district court. The order does not show the grounds upon which it was entered. The motion for vacation of judgment, thus set aside, was
The issues involved are decided by the determination of whether the action of the justice court, in failing and refusing to file the affidavit for change of venue and make its order transferring the cause, devested that court of jurisdiction over the subject-matter of this action. If so, then it follows, on the authority of Vidger v. Nolin, 10 N. D. 353, 87 N. W. 593, that the appeal on law and fact and demand for trial de novo, conferring appellate jurisdiction only of the person of the appellant by his voluntary act and appearance, could not vest the appellate court with jurisdiction of subject-matter where the lower tribunal did not have jurisdiction of subject-matter.
Manifestly the lower court, at the time of the application for change of venue, had jurisdiction of both person and subject-matter, and therefore was fully vested with authority to determine the cause. The payment of the dollar, and the presenting of the affidavit and application to the justice, were all that were required of the party desiring such change of venue, and it thereupon became the duty of the justice to grant a change of trial and to act under the provisions of § 8377. To all intents and purposes, therefore, the affidavit and application for a change of venue must be considered as filed in justice court after presentation. Does such fact devest the justice of jurisdiction of the cause for all purposes, so as to render an appeal from a judgment, afterwards erroneously rendered, abortive and void as not transferring jurisdiction of subject-matter to the appellate court? This must be answered in the negative. The statute reads': “From the time the order changing the place of trial is made, the court to which the action is thereby transferred has the same jurisdiction over it as though it had been commenced in such court. After an order has been made, transferring the action for trial to another court, the following proceedings must be had.” Dnder the statute jurisdiction to try the cause is superseded or stayed, with no power remaining to proceed or do aught but
“It is now urged by counsel for said respondent that the section quoted gives the district court original jurisdiction on the appeal, and that the fact that the justice had no power to determine the questions involved in the counterclaims is immaterial. To this contention we cannot agree. Similar enactments are to be found in the justice’s Codes of several states. The construction given to this provision by the courts of these states is not in all respects in harmony. But upon the question involved in this appeal such decisions generally hold that, where the justice had no jurisdiction of the subject-matter of the action, the district court could acquire none; and that such district court could not determine the case on the merits by amendment of the pleadings after appeal. In such cases the jurisdiction of the appellate court depends upon the jurisdiction of the justice, so far as the subject-matter of the litigation is concerned.” And the court there cites and distinguishes its holding from William Deering & Co. v. Venne, 7 N. D. 576, 75 N. W. 926, a holding that jurisdiction of the person may be conferred by a voluntary appearance in justice court, or by an appeal under a statute then requiring trial anew in the district court, under § 6779, Rev. Codes 1895, and before the enactment of all of § 8501, Rev. Codes 1905, granting an appeal upon questions of law only. Vidger v. Nolin follows Arnegaard v. Arnegaard, 7 N. D. 475, 41 L.R.A. 258, 75 N. W. 797. And for the same reasons these cases are distinguished from Miner v. Francis, 3 N. D. 549, 58 N. W. 343 ; Benoit v. Revoir, 8 N. D. 226, 77 N. W. 605 ; and this case at bar. See also extensive note in 34 L.R.A.(N.S.) 666, and the case under which the same is collected of Gulf Pipe Line Co. v. Vanderberg, 28 Okla. 637, 34 L.R.A.(N.S.) 661, 115 Pac. 782 ; Ann. Cas. 1912 D, 407 ; and McCubrey v. Lankis, 74 Minn. 302, 77 N. W. 144, on analogous principles. Our statute, § 8358, Kev. Codes T905, as construed in Heard v. Holbrook, 21 N. D. 348, on page 354,*456 131 N. W. 251 (distinguishing the earlier holding of Miner v. Francis, 3 N. D. 549, 58 N. W. 343, decided before amendment of 1895 to present § 8358, Rev. Codes 1905), is to the effect that where the lower court had jurisdiction of the subject-matter, an appeal, with demand for trial de novo on both law and fact, vests jurisdiction of the person as well, and transfers the cause for trial anew in the appellate court, and such was the legal effect of this appeal. We may grant respondent’s contention that the justice court had no jurisdiction except to order a transfer, and hence no jurisdiction to enter a judgment upon the merits, which is sound in law, but still the general appeal and demand for trial de novo, under Johnson v. Erickson, 14 N. D. 414, 105 N. W. 1104, and Heard v. Holbrook, supra, must apply and decide this case contrary to respondent’s contention. A distinction seems to be drawn. in principle between the proceedings occurring in excess of jurisdiction, after the filing of an affidavit of prejudice against the magistrate or judge, as here was done, from such acts done after the filing of a mere demand for change of place of trial. The former is void, the latter held not to be. 111 Am. St. Rep. 947, 948, note.
But we can see no distinction in principle between this case and that of Johnson v. Erickson, supra. There, in a justice court proceeding, title to real property was brought in issue, whereupon, under the statute, it became the duty of the justice to forthwith certify the cause to the district court, but instead of so doing he dismissed it. Upon appeal it was urged the same as here, that the district court was without jurisdiction because of the rule “that the district court by virtue of an appeal succeeds only to the jurisdiction of the justice court, and that where the justice court has no jurisdiction the appellate court acquires none.” The court there says: “In this case the justice not only had authority to transfer the case to the district court, but it was his express duty to do so. The distinction between this case, and those where there is no jurisdiction or no authority to transmit, is apparent. In such cases there is neither right nor duty to certify the case, and of course an appeal would not give jurisdiction. . . . The proceedings are irregular, but were made so by the error of the justice in rendering a judgment of dismissal, instead of certifying the case; and for this error the plaintiff is in no way responsible. . . . We are of opinion that when a justice has, by disregarding the statute, made it necessary
There the justice pronounced an unauthorized judgment when, instead, he should have certified the case to the district court for further proceedings; yet the appeal from such unauthorized judgment .was held to vest jurisdiction of the subject-matter in the appellate court, which ordinarily would have been transferred there without appeal by the order of the justice. Here the justice court, having conceded jurisdiction of person and subject-matter, proceeds unauthorizedly, .after it had become its mandatory duty to transfer the cause for trial to another justice court, and accordingly enters judgment, void because of want of power to enter any judgment' at all, but from which defendant has seen fit to appeal generally upon both law and fact and demand a trial de novo in the appellate court. The statutes concerned in Johnson v. Erickson, and in the case at bar, are in effect analogous, both superseding jurisdiction to determine the merits. If an appeal from a void judgment of dismissal, as in Johnson v. Erickson, confers appellate jurisdiction of subject-matter, most certainly under these circumstances the appeal so taken generally must be held to confer jurisdiction of subject-matter as well as person upon the appellate court.
Accordingly the order dated September 8, 1911, vacating the judgment entered October 3, 1910, was not made upon legal grounds, and should be and hereby is ordered to be vacated and set aside, and the judgment of the District Court of Benson county, vacated by such order, is directed to be reinstated. Appellant will recover judgment for costs and disbursements upon this appeal.