Thompson v. Wolf, 6 Or. 308

Thompson v. Wolf

6 Or. 308 | Or. | 1877

By the Court, McArthur, J.:

This action was begun in the circuit court for Washington county. From the complaint it appears that the respondent’s grantor on May 20, 1874, “leased and let” to the appellant “as tenant at will or by sufferance ” a certain parcel of land in Washington county. Thereafter the land was conveyed to respondent, and on February 16, 1877, he served appellant with notice to quit. The prayer is for judgment against appellant “for possession and restitution of the possession ” of the premises. It is unnecessary to allude to the pleadings subsequent to the complaint, or to any other paper filed in the cause except the motion of appellant to dismiss for want of jurisdiction, which was argued, submitted and denied before the trial.

Two questions arise upon this record. The first is, what *311is the character of the action? It cannot be regarded as an action of ejectment. In that action it is necessary that the plaintiff set forth the nature of- his estate in the property, whether it be in fee, for life or for a term of years (Civil Code, sec. 315), thereby enabling the courts to settle the question of title which is the great end of the action of ejectment with us. The complaint herein is entirely silent as to the nature of the respondent’s estate, the recovery of the mere possession of the premises being all that is sought. Therefore we are of opinion that this must be regarded as an action brought under the forcible entry and detainer act. (Mis. Laws, chap. 23.)

Counsel contended that the complaint is sufficient both in ejectment and in forcible entry and detainer. This is incorrect. To be sufficient in ejectment it would have to tender an issue as to title, and would thereby be insufficient in forcible entry and detainer, because the statute expressly forbids inquiry into questions of title in such actions. (Mis. Laws, chap. 23, sec. 16.) It is sufficient in forcible entry and detainer, and consequently is insufficient in ejectment; for in that action, as has already been said, an issue must be tendered as to title. (Civ. Code, sec. 315.)

The second question is: Has the circuit court jurisdiction in the first instance of actions of forcible entry and detainer? By the act of October 11, 1862 (Civil Code, sec. 868), the county courts were invested with exclusive jurisdiction of actions of forcible entry and detainer, withoút reference to the value of the property. The act of October 21,1864 (compilation of 1864, p. 743), simply sets forth the method of proceeding in such actions, and provided for notice to quit in certain enumerated cases. It named no court in which the action should be begun. The last act on this subject is that of October 21, 1866 (Mis. Laws, chap. 23). It expressly repealed the act of 1864. The remedy provided by the last act is summary and quasi criminal. Section 2 provides that “the person entitled to the premises may maintain an action to recover possession thereof, before any justice of the peace of the county in which such real property is situated.” By section 8, the. *312verdict must be guilty or not guilty. By section 10, an appeal is allowed' and must be taken to tbe circuit court. (Justices’ Code, sections 68 and 109.) By section 16 it is expressly provided that “the merits -of the title shall not be inquired into.” Taking the whole act together, we can reach no other conclusion than that it was the intention of the legislature to give the justices’ courts jurisdiction to the exclusion of the circuit courts.

"What effect the act of October 21,1868, had upon section 868 of the civil code, by which section exclusive jurisdiction is given to the county courts in actions of forcible entry and detainer, we do not feel called upon to decide in this case. If that section was repealed by implication, the the circuit court did not have jurisdiction in the first instance, and the same conclusion must be reached if the act of 1866 is simply regarded as conferring jurisdiction on justices’ courts, without taking away the jurisdiction of the county courts, thereby increasing the number of tribunals in which actions of forcible entry and detainer can be instituted.

Judgment reversed.