Hunt v. Wilson

Dewey, J.

The Rev. Sts. c. 85, have obviously introduced somewhat material changes as to the course of proceedings in civil actions pending before justices of the peace. But these changes do not, in our opinion, authorize a defendant, in a case where it does not appear, by the pleadings or by the record of the justice, that any suggestion was made, before the justice, that the title to real estate was concerned or brought in question, to offer evidence of title, as matter of defence, upon a trial in the court of common pleas, on an appeal from the justice.

Three important changes seem clearly indicated. 1. The provisions of the Rev. Sts. on this subject embrace a larger class of cases than were included in St. 1783, c. 42 ; as they apply to all actions pending before a justice of the peace, while that statute was restricted to actions of trespass, exclusively. 2. The form of pleading, required in such cases, in order to raise the question of title to real estate, is varied ; as it is sufficient that the defendant orally denies the right of the plaintiff to maintain his action, and alleges that the title to real estate is concerned or may be brought in question, and that this is stated by the justice on the record. 3. The more material change is, that when the title to real estate is brought in question, either by the pleadings in writing, or by the oral defence and the notice of it on the record, the justice may proceed to hear and determine the same, unless one of the parties request the removal of the same to the court of common pleas.

Neither of these changes seems to warrant the position M the defendant, that it is open to him, on the appeal, to raise for the first time the question of title to real estate. That such was not the intention of the legislature we think may be fairly inferred from the general provisions of the 85th chapter of the Rev. Sts., and particularly from the 6th section, providing for the further appeal to the supreme judicial court, m all cases removed to the common pleas, where it appears by the pleadings or otherwise, that the title to real estate was brought in question before the justice. This right of appeal jo the supreme court would, upon the defendant’s construction, bp at his election alone, and to bo determined by his mode of defence before the justice : whereas the manifest design of the statute was, that in all cases of title to real estate, both parties might have the opportunity of a trial in the supreme court. Although the right of appeal to this court, in actions of trespass quare clausum, is now taken away by St. 1840, c. 87, it does not affect the force of the argument as to the proper construction of the statute we have been considering. It seems to us, therefore, that the ruling of the court of common pleas was correct.

Exceptions overruled.