THE STATE OF NEVADA, ex rel. JUAN LAUNIZA, Relator, v. THE JUSTICE COURT OF CARSON TOWNSHIP, Respondent
State ex rel. Launiza v. Justice Court of Carson Township
FitzgeRald, C. J.: I concur.
THE STATE OF NEVADA, ex rel. JUAN LAUNIZA, Relator, v. THE JUSTICE COURT OF CARSON TOWNSHIP, Respondent.
[No. 1696.]
THE STATE OF NEVADA, ex rel. JUAN LAUNIZA, Relator, v. THE JUSTICE COURT OF CARSON TOWNSHIP, Respondent.
1. Certiorari — Beturn—Record — Conclusiveness. The affidavit of the attorney of defendant filed in the supreme court on certiorari, to review the action of a justice of the peace in refusing to transfer the case to the district court on the ground that title to real property was involved, which avers that defendant by oral answer in the justice court entered a general denial to the complaint, claiming damages for a trespass on lands alleged to be owned and possessed by plaintiff, does not show that there was oral answer where the record as certified by the justice fails to show that there was any answer.
2. Justices of the Peace — Jurisdiction—Title to Beau Estate. In an action in the justice court for trespass on plaintiff’s land defendant testified that, so far as he knew, the title to the land was in plaintiff. There was a failure to prove that plaintiff had the patent right to a particular eighty acres of land, but it was not shown that she did not have a prior possession thereto, nor did it appear whether the trespass was committed on all the lands claimed by plaintiff, or only on lands other than the eighty acres. Held, not to show that the right to real property was necessarily involved within art. VI, sec. 8 of the Constitution, providing that justice courts shall not have jurisdiction in cases where title to real estate is involved, and Comp. Laws, 3634, making it the duty of a justice in such case to certify the case to the district court.
3. Jurisdiction. Where plaintiff suing in the justice court for trespass on land gave no evidence of his title by patent, deed, prior possession, or otherwise, to any part of the land, the justice had jurisdiction to enter judgment for defendant for the costs, title to land not being involved.
4. Title. Where, in trespass on land, action brought in justice court, and plaintiff did not prove ownership to the land, and there was no evidence that the same belonged to a third person, and defendant made no claim to the land, title to land was not necessarily involved.
5. Evidence — Pboof of Title — Opinion. The testimony of the attorney for defendant who was sued in the justice court that, from an examination of the documentary evidence, it was apparent that defendant did not have title to all the lands, was not testimony of a fact, but the mere opinion of the attorney on a question of law, for the court’s consideration and determination.
ON Rehearing-.
6. Justices of the Peace — Review—Cebtioraki—Reheaking—Amendment of Recoup. Under Supreme Court Rule No. 8, providing that objections to the record affecting appellant’s rights must be taken at the first term after the transcript is filed, a party seeking to review by certiorari a justice’s judgment in an action for trespass on the ground that title to real estate was involved cannot, on rehearing, after the dismissal of the writ, introduce an amended record showing that a general denial of the allegations of the complaint by oral answer was entered in the justice’s court.
7. Jukisdiction — Title to Real Estate. A justice of the peace cannot certify a case to the district court on the ground that title to real estate is involved, unless it appears by the verified answer or on plaintiff’s own showing that title, is involved.
Original proceeding. Certiorari by the State, on the relation of Juan Launiza, against the Justice Court of Carson Township, Ormsby County, State of Nevada.
Writ dismissed.
Petition for rehearing.
Overruled.
The facts sufficiently appear in the opinion.
Samuel Platt, .for Relator:
I. The docket of the justice of the peace in the case at issue shows that plaintiff filed his verified complaint, and that the defendant interposed an oral answer denying each and every allegation of the complaint. The fact that no written answer under oath was filed as a pleading by the defendant eliminates one question of jurisdiction from the consideration of this petition. If the answer of the defendant had been in writing and verified, that fact of itself would have raised the question of title to real property, and upon the pleadings themselves the justice would have been compelled under the law to have certified the case to the district court for trial. In this case, however, the defendant’s answer not having been in writing and verified, the question as to whether the title to real property was involved or not could only be determined upon the trial of the case. It is respectfully submitted that if, upon the trial of the case,"by the plaintiff’s own showing, or by the evidence itself.,” title to real property became involved, it then and there became the duty of the justice of the peace to certify the case to the district court for trial. By the introduction of certain documentary evidence, the plaintiff by his own showing attempted to show title to the property over which the sheep are alleged to have trespassed. In order for the plaintiff to sustain his action it was necessary that he show title or possession, or right of possession, in and to the property specifically described in his complaint. The fact that his title was controverted by the answer of defendant placed the burden of proof upon the plaintiff to establish that title. He could only establish it by and through the means of evidence upon the trial of ■ the case, and, when he attempted to do so, he could do nothing but impress the justice with the fact that the title to the property was a question necessarily involved in determining as to whether plaintiff had any ground for action or not. The record will also show that the defendant controverted by oral evidence plaintiff's title in said property, or at least his title to a portion of said property. By means of this evidence defendant directly involved the question of title, and the justice should have granted defendant’s motion and certified- the ease to the district court.
II. The statute provides that no issue presenting a question involving the title to real property shall be tried by the justice. It seems clear that the issues here not only involve the question of damages for trespass, but are directly con-, nected with the issue of title to or right of possession of the lands described in plaintiff’s complaint. If plaintiff has no title or possession, certainly he has no cause of action for trespass. The title or possession is the basis of his action, and, if this title or possession is controverted, an issue of title is involved whieh prohibits the justice from proceeding with the trial of the ease. "Under the mandatory provisions of section 838 of the code of civil procedure a justice court has no jurisdiction to receive evidence upon, or try any issue involving the title or possession of real estate; and when any evidence is offered upon such an issue it is made the imperative duty of the justice to suspend all further proceedings, and to certify the proceedings, or a transcript of oral proceedings, from his docket to the clerk of the superior court.” {King v.Kutner-Goldstein Co., 135 Cal. 65.) "If a plaintiff, in order to sustain his action, is obliged to rely on and prove a possessory title, even to premises described in his declaration, a justice of the peace has no jurisdiction of the suit.” {Raven v. Needham, 20 Yt. 183.) "In an"action in a justice's court where defendant's statements show that the title to real estate is involved, it is the duty of the justice to certify the ease to the circuit court.” {State ex rel. Houston v. Ganchorn, 56 Mo. App. 519, 52 Mo. App. 220; Sweeh v. Galbreath, 11 Or. 516.) "Whenever in a suit commenced before a justice of the peace, it appears from the pleadings or evidence or argument of the parties that the title to real estate will come in question, the suit must be dismissed for want of jurisdiction.” {Parker v. Bussell, 3 Blackf. 411; Smith v. Harris, 3 JBlackf. 416.) The question at issue upon the petition herein has never been squarely decided by the supreme court of this state. This court has held that in a case of malicious mischief no question of title is or could be involved. The court based its conclusions in that case upon the mandatory provision of the statute and of the constitution prescribing jurisdiction of justices of the peace over criminal cases, and therefore refused to oust the jurisdiction of the justice of the peace on account of this mandatory provision of the statute. This court has declared, however, that "where the trial of a case in a justice court involves a question of possession of real estate, the case should be transferred to the district court.” {Tull v. Anderson, 15 Nev. 426.)
Alfred Qhartz, for Respondent:
I. The complaint, per se, raises no question of title, and tenders no issue of right of possession to land. If it did, being exactly like the complaint in the case of Hangberg v. Buhenstroth, 26 Nev. 455, the latter case would have been decided differently. Comp. Laws, 780, underwbieh the action was brought, says: "It shall be unlawful for any person or persons to herd or graze any live stock upon the lands of another,” etc. The words "lands of another” make it incumbent upon the plaintiff to aver title, or else his complaint will fail to state facts sufficient to constitute a cause of action. Having to aver his title, he must prove it, or else his evidence will be insufficient to support the judgment. But these aver-ments and proofs bring the title into question only incidentally, and do not bring the right of possession into question between the parties to the action. (38 Cal. 683; 66 Cal. 640.)
II. Does the answer or the proofs tender an issue between the parties, plaintiff and defendant, as to the title of the lands described in the complaint, or the right of possession thereof? The answer .is oral, not sworn to, and is general, denying each and every allegation of the complaint. It is sufficient in nearly all cases arising in the justice courts, but is it sufficient to raise the question of title and right of possession of lands? Comp. Laws, 3634, provides .that the showing must be made under oath. So the answer in the case at bar is not better than a demurrer. "The defendant in the action in the justice court did not file any verified answer, as required by the statute cited. His answer was a general denial of the allegations of the complaint. It is true, he moved to transfer the action to the superior court, on the ground that the title to real property was involved. This did not oust the justice court of its jurisdiction. The justice was only called on' to transfer the cause when a verified answer was filed, as required by the statute. The justice did not err, therefore, in proceeding with the cause.” (Schroeder v. Wittram, 66 Cal. 641.) *
III. Did the testimony of the attorney for defendant raise any issue of title or right of possession to r.eal property? Quoting from his affidavit: "Defendant’s counsel has sworn and testified that, from an examination of the documentary evidence, it was evident that plaintiff did not have title to all of the lands involved, and that, upon the best of his information, knowledge and belief, the testimony introduced was not sufficient to establish title in and to the lands as alleged in plaintiff's complaint.” Again, quoting from Schroeder v. Wittram, 66 Cal. 639: "In his defense, the defendant gave no direct evidence of title. The burden of his defense was, that in his opinion the title was good. But the opinions of witnesses as to the title of real property is not evidence of title."
IY. Taking the entire scope of the case we find:
(1) That it is absolutely necessary to plead title, and to prove it, and that such plea and proof is only incidental to the right of recovery of damages for trespass of cattle, and in no wise involves the title or right of possession of real property.
(2) That the answer involved no issue of title or right to possession of real property, and that the opinion of witnesses as to the title to the real property is not evidence of title.
(3) That there is no proper or necessary party plaintiff or defendant in the proceeding.
(4) That the affidavit upon which the writ is based is insufficient, and that it is not made by the party beneficially interested, and defendant has not prosecuted his proper remedy.
Samuel Platt, for Relator, on rehearing:
I. " The question of title is raised in an action of trespass before a justice of the peace if the plaintiff offers deeds in evidence of his right of possession, or claims such right under a third person, whose ownership he proposes to show.” (Gay v. Suits, 55 Mich. 327; Jalceway v. Barrett, 38 Vt. 316; Ostrom v. Potter, 71 Mich. 44; Orris v. 'Kempton, 105 Mich. 229; Lane v. Young, 66 Hun, 563.) In the ease .at bar, plaintiff’s possession was not an actually alleged possession, but merely constructive, based upon an alleged title to the lands in question. It was necessary to establish her title in order to prov.e possession, and the respondent had no jurisdiction under the constitution and laws of the State of Nevada to hear testimony tending to establish said title. (Am. Digest, vol. 31, col. 935, sec. 85, and authorities therein cited; Hillman v. Stanger, 49 N. J. Law, 191.) In trespass cases in justice courts, if the defendant offers not to prove title in himself, but to prove lack of title in plaintiff, the action under section 25 of the small-cause act should be dismissed. (Edgar v. Anness, 47 N. J. Law, 465.)
By the Court,
Talbot, J.:
Martha H. Blackwell brought suit in the Justice Court of Carson Township against Juan Launiza claiming damages for the herding of sheep on lands alleged to be owned and possessed by her and her assignors.
The affidavit of relator's attorney filed in this court states that by oral answer defendant entered a general denial to the allegations of the complaint, but the record as certified by the justice of the peace fails to show that there was any answer, either oral or written, verified or unverified, questioning plaintiff's title to the lands. She recovered a verdict and judgment for $75 and for costs and attorney's fees. Patents, state contracts, and deeds introduced in evidence by her on the trial indicated that she was the owner of several hundred acres of the land, but there was a deed to her from Clara Sweeney, given three years previously, for eighty acres, for which the latter was not shown to have had any patent, contract, right, or title. It appears from the record that defendant in that action, who is relator here, testified so far as he knew the title to the lands was in the plaintiff and that he was not aware of any omission in her title. Defendant's counsel was sworn as a witness, and stated from an examination of the documentary evidence it was apparent that plaintiff did not have title to all the lands. Thereupon, the attorney for the defendant renewed a motion to certify the ease to the district court for trial upon the ground that the title to real property was necessarily involved in the determination of the action, and that the justice court^ had no jurisdiction under section 3634 of the Compiled Laws.
The proceeding here is brought to review the action of the justice court in refusing to certify the case to the district court for trial and the question for determination is whether the title to real property was necessarily involved so as to deprive the justice court of jurisdiction. Section 8 of article VI of the Constitution of Nevada provides that justice courts shall not have jurisdiction "in cases wherein the title to real estate or mining claims, or questions of boundaries to lands are involved," and section 3634 of the Compiled Laws: "The parties shall not be at liberty to give evidence upon any question which involves the title to, or the right of possession to, or the possession of, real property or mining claims, or upon any question involving boundaries to land, or the legality of any tax, impost, assessment, toll, or municipal fine, nor shall any issue presenting such question be tried by the justice; and if it appear from the plaintiff's own showing on the trial, or from the answer of the defendant, verified by his oath, that the determination of the action will necessarily involve either of such questions, the justice shall suspend all further proceedings in the action, and certify the pleadings, or, if the pleadings be oral, a transcript of the same, from his docket to the district court for the county; and from the time of filing such pleadings or transcript with the clerk of the district court, such district court shall have over the action the same jurisdiction as if it were originally commenced therein." It is not pretended that a verified answer was filed and the affidavit is insufficient to show that there was an oral answer questioning plaintiff's right to the lands, for the proceedings in the lower court are required to be established by the record as certified. (Alexander v. Archer, 21 Nev. 32, 24 Pac. 373.)
We need not determine whether, in the absence of an issue raised by answer, evidence could be introduced on the trial to show a conflict in regard to the title. It is sufficient for the purposes of the case to say that if it could be so introduced and considered, the evidence submitted did not show that the right to real property was necessarily involved. There was a failure to prove that the plaintiff and her grantor had the patent right to this particular eighty acres, but it is not shown that she did not have a prior possession which would have raised sufficient presumption of her ownership in the absence of patents and deeds. Nor does it appear whether the trespass was committed on all the lands claimed by the plaintiff, or only on lands other than this eighty acres, which would not necessarily involve the title to the latter. If evidence may be considered for any purpose when no issue is properly shown, we may distinguish between absence of proof and conflict in evidence, and conclude that the failure of the plaintiff to prove ownership by patent to part or all of the land did not make it necessary to have the case certified to the district court. If she had failed to introduce evidence of her right by patent, deed, prior possession, or otherwise, to any part of the land, the justice court would still have had jurisdiction to enter judgment in favor of the defendant for costs. If she did not prove ownership by prior possession when she had not connected herself with the patent right, then there was no proof that the land belonged to her, and, there being none that the land belonged to any one else, such failure of proof did not raise any conflict in the evidence, and did not show that the title was necessarily involved when the defendant, as a witness, made no claim to the land nor contention that it belonged to any third person, and his conduct and testimony were more nearly tantamount to an admission that plaintiff was the owner. The defendant's attorney did not testify to' any new facts, but in regard to his opinion as to whether the evidence required the certification of the case, a matter of law for the court. Oregon Short Line R. Co. v. District Court (Utah), 85 Pac. 362, 363, and cases there cited, are instructive regarding the proposition here involved.
It is ordered that the writ be dismissed, and that the papers certified from the justice court be returned to that tribunal.
FitzgeRald, C. J.: I concur.