Stiles v. James

Opinion of

Wingaed, Associate Justice.

This was an action begun in the above mentioned Court, for the recovery of the possession of specific personal property, to wit: two horses.

Upon issues joined, the cause was tried by a jury at the regular June term, 1882, and a verdict was returned in favor of the plaintiff.

Upon the return of the verdict, the defendant’s counsel filed a motion in arrest of judgment, on the ground that the Court had no jurisdiction of the subject matter of the action, for the reason that the complaint failed to show that at the commencement of the action the property was detained in Columbia or Garfield counties for which said Court was holden, or elsewhere. The .Court below sustained the motion, and subsequently, during the term, a motion was made by defendant’s attorney to dismiss the action, which motion was likewise sustained by the Court. This action of the Court in sustaining the aforesaid motions is assigned as error. The'return of the Sheriff in the transcript before us shows that the property was found and taken by him within the jurisdiction of the Court, to wit: in Garfield County, aforesaid. We are of opinion that an allegation of venue in the complaint was essential to give the Court jurisdiction of the subject matter; but although no mention appears to have been made during the proceedings in the Court below of the Sheriff’s return, the Court was bound to have knowledge of the record, and that record discloses that the property was within the jurisdiction of the Court. The substantial rights of the defendant, therefore, were not affected by the defect in the complaint, and the Court should have disregarded it. (Section 113, Code of 1881.)

Let the judgment of the Court below, in arresting the judgment and dismissing the action, be reversed.