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[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this reporter.]

Guillaume v. K. S. D. Fruit Land Co. (Or.) 86 | Warner Valley Stock Co. v. Morrow (Or.) 86 P. 883.

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P. 369.

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THE

PACIFIC REPORTER.

VOLUME 87.

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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 certify the case to the district court on the ground that title to real property was involved, which avers that defendant by oral answer in 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 an oral answer where the record as certified by the justice fails to show that there was any answer.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Certiorari, §§ 143–146.]

2. JUSTICES OF THE PEACE-JURISDICTIONTITLE TO REAL ESTATE.

In an action in 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 80 acres, 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 80 acres. Held not to show that the right to real property was necessarily involved within Const. art. 6, § 8, 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.

[Ed. Note. For cases in point, see vol. 31, Cent. Dig. Justices of the Peace, § 97.] 8. SAME.

Where plaintiff, suing in justice court for a trespass to land gave no evidence of his right 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. SAME.

Where, in trespass to land, brought in Justice court, 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.

[Ed. Note. For cases in point, see vol. 31, Cent. Dig. Justices of the Peace, 97.]

87 P.-1

5. EVIDENCE-OPINION EVIDENCE.

The testimony of the attorney of defendant, sued in justice court for trespass to land, that from an examination of the documentary evidence it was apparent that plaintiff did not have title to all the lands, was not testimony of a fact, but the mere opinion of the attorney on a matter of law, for the court to determine.

Writ of certiorari by the state, on the relation of Juan Launiza, against the justice court of Carson township. Writ dismissed.

Samuel Platt, for petitioner. Alford Chratz, for respondent.

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 80 acres, for which the latter was not shown to have had any patent, contract right, or title. It appears from the record that the defendant in that action, who is the 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 that 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 case 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

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87 PACIFIC REPORTER.

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 Section 8 of article court of jurisdiction. 6 of the Constitution of Nevada provides that justices' 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."

If

clude 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.
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 it 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 be-
longed 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 certi-
`fication 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., concurs.

missing the writ. 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
Alexander v.
by the record as certified.
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 this 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 in-
volved. There was a failure to prove that
the plaintiff and her grantor had the patent
right to this particular 80 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
Nor does it appear
of patents and deeds.
whether the trespass was committed on all
the lands claimed by the plaintiff, or only
on lands other than this 80 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 con-

NORCROSS, J. I concur in the order disIf the transcript of the justice's docket had shown that an oral answer had been filed denying plaintiff's allegations of ownership or right of possession, then, in my judgment, it would have appeared that an issue was raised requiring proof upon the part of plaintiff to establish her allegations of title or right of possession, and such proof the justice, under the provisions of the statute, would not have jurisdiction to hear. His duty then would have been to have certified the case to the District Court. King v. Kutner-Goldstein Co., 135 While the justice did Cal. 65, 67 Pac. 10. hear testimony upon the question of title. I think it was improper for him to have done so, and such action might have been sufficient to have supported a conclusion that the title or right of possession of real property was involved in the action, did not the testimony of the defendant, practically conceding plaintiff's title, negative such a conclusion.

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