Striker v. Mott, 6 Wend. 465

Striker v. Mott

6 Wend. 465 | N.Y. Sup. Ct. | 1831

By the Court,

Marct, J.

On the part of the plaintiff, it is contended that the plea setting up a right of way, put in question the title to the premises on which the trespass is ah *466leged to have beeh committed, and formed an issue which the justice, even with the consent of the parties, could not try. On the other hand, it is said that the consent of the plaintiff took away the error, if there was any; and besides, that the right of way is a mere easement, and does not controvert the plaintiff’s title to the premises used as the way. The case of Heaton v. Ferris, 1 Johns. R. 146, settles the question as to the character of the issue. The claim to a right of way involves the title to the premise's, over which the alleged road , passes. As the title was put in issue by the pleadings, the justice was thereby ousted of his jurisdiction, and the consent of the parties that the justice might go on and try the issue, did not restore it to him. 17 Johns. R. 471. The statute is explicit that no justice shall have cognizance of any action, where the title of lands shall in any wise come in question. Laws of 1824, p. 280, § 1. The justice should not have received the second plea, unless the defendant had complied with the ninth section of the justice’s act. If the requirements of that section had been complied with, the cause could have proceeded no further than putting in the plea. These requirements being waived, the plea must be considered as having the same effect as if they had been observed. There ought, therefore, to have been no further proceedings before the justice after the plea was received; but the cause did proceed, and evidence was heard in relation to the isssue involving the title. This was error. But it is said that if the justice proceeded to try the issue involving the title, and acted without jurisdiction, the judgment is void, and cannot be enforced, and that there is, therefore, no necessity for reversing it. I see no way whereby the plaintiff can prevent the judgment from being carried into effect against him, but by a reversal. The execution, which may be issued thereon, would not shew upon its face a want of jurisdiction in the magistrate, either as to the person of the party, or the subject matter of the suit. The officer would therefore be protected in executing.

The defendant insists that there is no judgment for costs, but in this I think he is wrong. The justice states that the jury found a verdict for the defendant; that he, in pursuance *467of the statute, entered judgment in favor of the defendant, that is, he rendered a judgment for the defendant against the plaintiff, which doubtless was an ordinary judgment in such a case, which would, as a matter of course, include the costs of the suit.

Judgment reversed.