
    Joseph Kaub v. John P. Mitchell and others.
    July Term, 1873.
    1. Continuance: Justices’ Courts. A continuance granted from the twenty-sixth of August until the second of September next following is not sufficiently erroneous to authorize a reversal of the judgment of the justice, although the adjournment may have been ordered for an insufficient reason.
    2. Bill of Particulars: Sufficiency of, on Review. Where no question is raised in the justice’s court as to the sufficiency of a bill of particulars, if by a very liberal construction said bill of particulars can be construed to state a cause of action, neither the district court nor the supreme court should disturb the judgment founded thereon.
    3. Trespass: Jurisdiction of Justice. Where a bill of particulars does not show affirmatively and clearly that the action is for trespass upon real estate, it will not require or authorize a reversal of the judgment of the district court and the justice’s court upon the ground that the justice had no jurisdiction.
    4. Trial: Justices’ Courts: Clerical Error: Calling for Trial. Where a justice, on September 2d, (.the time to which the case had been previously adjourned,) was engaged in other official business, and the case was not called until the Monday following, at which last-mentioned time the case appears to have been tried, and the judgment complained of rendered, held, that the justice did not lose jurisdiction of the case; and a clerical error, as the writing of “August” for “September,” does not constitute an error upon the face of the record for which the judgment should he reversed.
    Error from Greenwood district court.
    The case is stated in the opinion.
    
      Paine é Meigs, for plaintiff in error.
    The district court erred in affirming the judgment of the justice. A motion was made before the justice to dismiss, for want of jurisdiction. The action was “trespass on real estate,” and the plaintiffs claimed more than $100.. Justices’ Act, § 6. This motion should have been sustained. McCleary v. McLain, 2 Ohio St. 369; Bowers v. Pomeroy, 21 Ohio St. 189. The plaintiffs below, to avoid *this objection, obtained leave of the justice to amend their bill of particulars by striking out the word “trespass.” This did not leave the cause of action any the less one for trespass; but if it had changed the cause of action, it was error to allow it to be done at the time the amendment was made, for it was made in the absence of plaintiff in error, and without any notice to him, and after he had ceased to make any appearance in the case. The defendant must be apprised by the summons of the nature of the claim, and a judgment could not be taken upon a different claim from that set forth in the summons, if the defendant did not appear, without its being error. The defendant appeared before the justice, — appeared as lie was required by the summons, — and, being advised of the nature of the claim against him by the summons and also by the bill of particulars, he asked to have it dismissed. His motion was disallowed, and (after the adjournment had at that time without his consent) he made no further appearance in the case; and we claim no judgment could be taken against him in his absence, without further notice other than a judgment upon a claim for “trespass” as set forth in plaintiffs’ bill of particulars, if any cause of action is therein set forth.
    The justice adjourned the cause before him from August 26th (without the consent of defendant below) to September 2d, for the purpose of giving the plaintiffs time to procure security for costs, which we claim he had no legal right to do; and that by so doing he lost jurisdiction of the person of the plaintiff in error. Davis v. Bartlett, 12 Ohio St. 534.
    The transcript shows that the cause was called for the first time (after adjournment had August 26th) upon the fourth day of September, and was not called September 2d, the time to which it was adjourned; and if so, the error is fatal. Justices’ Act, § 80.
    The facts as set forth in the bill of particulars do not constitute a cause of action.
    The transcript shows that September 4th the case was called, and defendants failed to appear, and judgment was *had against defendants for $300, which certainly is error, fatal to the validity of the judgment.
   Valentine, J.

This action was instituted originally in a justice’s court. Judgment was there rendered for the plaintiffs. The case was then taken on petition in error to the district court, where the judgment of the justice was affirmed. Only one exception was taken to the rulings of the justice, and that was an adjournment of the case from August 26, 1871, to September 2, 1871. There was no error in this sufficient to authorize a reversal of the judgment of the justice, although the adjournment may have been ordered for an insufficient reason.

2. The bill of particulars in the justice’s court reads as follows: “Joseph Kaub and Peter Dodder, debtor, to John P. Mitchell and Kate Mitchell, his wife, in the sum of $300, for trespass and damage by cutting timber and framing timber for one saw-mill erected on sections 28 and 22, town 25, range 13, which mill they are taking away, and timber, to the loss and detriment of the said John P. Mitchell and Kate Mitchell, his wife, in the above sum of $300, according to contract.” No question was raised in the justice’s court as to the sufficiency of this bill of particulars. Hence, if, by a very liberal construction, said bill can be construed to state a cause of action, neither the district court nor this court should disturb the judgment founded thereon. We think the bill of particulars, if construed liberally, states a cause of action. It must be admitted that the cause of action is not very intelligently nor intelligibly stated; but'the proper place to raise the question of the sufficiency of the bill of particulars was in the justice’s court.

3. The defendant raised a question of jurisdiction in the justice’s court by a motion to dismiss the action on the grounds “(1) that the justice of the peace has no jurisdiction in the cause, because the amount claimed is over one *hundred dollars; (2) because that said plaintiffs in their bill of particulars have not elected whether to bring their action for trespass to real or to personal property. ” The justice overruled this motion, and no exception was taken. Probably, however, the defendant could not waive jurisdiction if the justice really had no jurisdiction of the subject-matter of the action. The point now raised is this: It is claimed that a justice of the peace has jurisdiction in cases of trespass on real estate only where the amount claimed does not exceed one hundred dollars, (Justices’ Act, § 6; Gen. St. 775;) that this is an action for trespass on real estate; that the amount claimed is $300, and therefore that the justice did not have jurisdiction to try it. Now, all the presumptions from silence or absence are in favor of the rulings of the court below, and of the justice’s court. If this is an action for trespass upon real estate, it devolves upon the plaintiff in error (defendant in the justice’s court) to show it. Has he done so ? If it is shown at all, it is shown by said bill of particulars. Does that show it ? We think not, or, at most, we do not think that it shows it with that degree of certainty which will require or authorize a reversal of the judgment of the district court, and that of the justice’s court. The word “trespass” is used in said bill of particulars, but that word does not mean “trespass upon real estate” any more than it means many other kinds of trespass. Any infringement upon the rights or privileges of another is a trespass. And it can hardly be claimed that a trespass by which one party becomes liable to another as a “debtor,” as in the present case, is a trespass upon real estate, or a trespass guare clausum fregit. Besides, what construction must be given to the words “according to contract,” used in said bill of particulars? The word “timber” is also used in said bill, but that word may mean real estate, or it may mean personal property. “Sections 28 and 22, town 25, range 13,” on which the mill for which the timber was being cut and framed, may have been the defendant’s own land. No trespass is shown to have been committed on that land; and if any trespass is *shown to have been commited on any real estate, what real estate was it ?

4. The record of this case shows that on September 2, 1871, (the time to which this case had been previously adjourned,) the justice was engaged in other official business, and that “the case was called until Monday, August 4, 1871, at 9 o’clock,” at which last-mentioned time the ease appears to have been tried, and the judgment complained of rendered. It is difficult to understand this language. If it means that on September 2,1871, the case was adjourned, on account of the justice’s time being preoccupied with other official business, until Monday, September 4, 1871, there was no error. If it means that the case was not called on account of the justice being engaged in other official business until September 4, 1871, still there would be no substantial error. If it means that the justice called the case continuously from September 2, 1871, to September 4, 1871, still there was no substantial error.

There seems to be no point made on the ground that the justice says'“Monday, August 4, 1871,” instead of Monday, September 4, 1871. The time could not have been August, 1871, for that month had already passed. It could not have been Monday, October 4, 1871, nor Monday, November 4, 1871, for there were no such days. And it can hardly be supposed that it was Monday, December 4, 1871, more than three months after September 2d. It was certainly September 4, 1871, for the record shows that the motion to strikeout the word “trespass” from said bill of particulars was heard, decided, and sustained on the day which the record purports to show was August 4, 1871, while the record also shows that this motion was made on September 4, 1871. As said date could not have been August 4th, it will be presumed, in favor of the regularity of the proceedings of the court below and the justice’s court, and from other portions of the record, that it was September 4th.

The judgment of the court below is affirmed.

(All the justices concurring.)  