18 Ind. 145 | Ind. | 1862
This was an action of trespass guare clausum fregit, brought by Wall against Albertson, before a justice of the peace. The defendant pleaded liberum tenementum. On trial before the justice, the plaintiff had judgment. The defendant appealed, and on trial in the Circuit Court, the title to land coming in question, the Court dismissed the cause for want of jurisdiction in the justice, and the plaintiff excepted. This ruling presents the only question involved in the case.
A justice of the peace has no jurisdiction in any action wherein the title to land shall come in question. But the title to land did not necessarily come in question in this action before the justice. It might or might not. The defendant had the benefit of a denial of the alleged tort without pleading it. The case may have been tried before the justice without any question of title being raised, otherwise than by the
The pleading not being verified, the only question is whether, from the proofs adduced before the justice, title to land appeared to be in issue.
There was nothing before the Circuit Court, nor is there before us, to show what the proof was before the justice. We must presume that he did his duty, and, therefore, that it did not appear from the proof before him, that such title was in issue; as, if so, it would have been his duty to decline further action, and certify the cause up. "We must, then, consider that title was not put in issue properly by pleading, so as to oust the jurisdiction of the justice, nor by the evidence adduced on the trial before him.
The fact, that on the trial in the Circuit Court, the title to land was brought in issue, could not deprive that Court of its ■ jurisdiction, nor could it relate back and defeat the jurisdiction of the justice, who, we have seen, must be deemed to have had jurisdiction of the cause.
But it is objected that the question is not properly raised, because the evidence is not in the record, and because there was no motion for a new trial. We see no necessity for either. We are informed by the record that the cause was submitted to the Court for trial, and that “the evidence being heard in part, and the title of land coming in question, as
The judgment is reversed, with costs. Cause remanded.