Harding v. Ellston ( 1890 )

Beatie, C. J.

This action was brought to recover damages for an alleged trespass upon lands belonging to the plaintiff. The defendant answered, setting up title in himself. The answer was in proper form, and Was duly countersigned by the justice, as required by law. Code Civil Proc. § 2951. The defendant also delivered with the answer an undertaking, signed by the defendant and a surety, conditioned as required by the statute. Code, § 2952. The surety justified in the sum of $400, an amount twice as great as he would, in any event, be liable to pay upon a breach of the condition of the undertaking. The justice in his return states that he did not approve the undertaking. Upon a later day he proceeded with the trial of the action, and judgment was rendered against the defendant in his absence. The law governing the practice in justices’ courts upon a plea of title to land has been practically unchanged since 1820. 1 Rev. Laws, 390; 2 Rev. St. 1846, 334; Code 1848, § 55; Code Civil Proc. § 2951. While the law provides for an approval of the undertaking by the justice, it does not provide any penalty or mode of procedure in the event of a failure or refusal of the justice to approve. It does provide (section 2954) that, upon the delivery of the undertaking to the justice, the action shall be discontinued. It further provides (section 2955) that, if the undertaking is not delivered to the justice, he has jurisdiction of the action, and must proceed therein. The statute does not provide for a justification by the sureties, but the justice would probably have authority to examine the sureties as to their responsibility, upon the presentation of the undertaking, and before a formal delivery of it to him. If the surety was not satisfactory to the justice, he might show by his record his reasons for disapproval, and so retain jurisdiction of the action. In this case it does not appear that the surety was examined by the justice, nor is any reason assigned by him for his refusal to approve the undertaking. It was delivered to him, and tiled, and is returned upon this appeal as a part of the record in the action. I think the delivery of the undertaking to the justice, and his retention of it, were sufficient to oust him of jurisdiction. If not sufficient, his refusal to approve the undertaking, without some reason therefor being given, was wholly without authority. In either view, the judgment must be reversed.

It is claimed that, if the judgment must be reversed, the respondent should not be held liable for the costs of the appeal. The error committed by the justice was an error of law, and the appeal is taken on questions of law only. Ho error of fact is suggested, nor can a new trial be directed. The result is subject to subdivision 4 of section 3066 of the Code, and the right to costs is absolute upon reversal. The decisions are uniformly to that effect, and my attention has not been called to any ease to support the contention of the counsel for the respondent. Judgment reversed, with costs.