
    Frederick Lindekugel vs. Paul Angelhofer.
    December 27, 1877.
    Justice of the Peace — Action Involving Title to Real Estate — Docket Entries, Certificate and Return. — In an action commenced before a justice of the peace, in which., upon the pleadings, title to real estate maybe involved, and in which the justice has jurisdiction of the subject-matter of litigation and of the parties, the effect of the making of an entry in his docket, and of the making of a certificate and return all in accordance with the requirements of Gen. St. o. 65, § 85, is prima fade to invest the district court with complete jurisdiction of the case.
    Same — Evidence that Title to Real Estate was Involved — Motion for Eurther Return. — If it did not in fact appear on the trial before the justice, from the evidence of either party, that the title to real estate was involved in the action, this should be taken advantage of by seasonably bringing it to the notice of the district court upon affidavit, and upon a motion for a further return from the justice showing what the evidence, if any, upon the matter of title was.
    
      Trespass quare clausum fregit, begun before a justice of tbe peace, and subsequently certified and returned by tbe said justice to tbe district court for Sibley county, upon tbe ground-that it appeared from tbe evidence upon tbe trial of tbe action that tbe title to real estate was brought in question and disputed by tbe defendant. Tbe cause was tried in tbe district court by L. M. Brown, J., and a jury, and verdict found for tbe plaintiff. Judgment was entered on tbe verdict, and from this judgment tbe defendant appealed.
    
      Davis, O’Brien á Wilson, for appellant,
    argued that tbe trespass found was tbe building of a fence upon a certain quarter section owned by tbe respondent, instead of tbe dividing line; that tbe question was simply tbe physical one, upon which side of tbe line did tbe respondent build bis fence ? that tbe matter of title was no element whatever in tbe controversy, (Wood v. Prescott, 2 Mass. 173;) and that it was clear, therefore, that tbe justice bad jurisdiction to try tbe cause, and that tbe district court consequently did not acquire jurisdiction through tbe error of tbe justice. Wood v. Prescott, supra; Verbeck v. Verbeck, 6 Wis. 159.
    
      S. é O. Kipp, for respondent,
    cited Glague v. Hodgson, 16 Minn. 333; State v. Christensen, 21 Minn. 500; and argued upon these authorities that it must be presumed from tbe transcript of tbe entries in tbe justice’s docket that tbe testimony of tbe plaintiff brought in question and involved tbe title to tbe locus in quo, and that tbe defendant, then and there before tbe justice, disputed tbe plaintiff’s title thereto; and "the facts developed upon tbe trial before tbe justice need not be, nor in fact were, identical with tbe facts developed upon tbe trial in tbe district court.
   Berry, J.

This was an action for trespass upon the plaintiff’s land, commenced before a justice of the peace.

Section 35, c. 65, Gen. St. provides that “if it appears on tbe trial of'any action before a justice of tbe peace, from tbe evidence of either party, that tbe title to real estate is involved, which title is disputed by tbe other party, tbe justice shall immediately make an entry thereof in his docket, and cease all other proceedings in the cause, and shall certify and return ta the district court of the county a transcript of all the entries made in his docket relating to the case, together with all the process and other papers relating to the action, in the same manner, and in the same time, as upon an appeal; and thereupon the district court shall proceed in the cause to final judgment and execution, the same as if the action had been originally commenced therein.”

The transcript of the entries made by the justice in his docket in this case, after showing the appearance of the parties, etc., contains the following, viz.:

“Plaintiff sworn and examined in the case. It appearing from the evidence that the title to real estate is brought in question, which title is disputed by the defendant, I do forthwith cease all proceedings in the case, to certify apd return the same-to the district court of Sibley county, as required by law. ”

The case being one in which, upon the pleadings, title to real estate might be involved, the justice having jurisdiction of the. subject-matter of litigation and of the parties, and the entry in his docket, together with his certificate, and return having' been duly made in accordance with the requirements of statute, the effect was prima facie to invest the district court with' complete jurisdiction of the case. If it did not in fact appear onthe trialbefore the justice, from the evidence of either party, \ that the title to real estate was involved in the action, this1 should be taken advantage of by seasonably bringing it to the. notice of the district court upon affidavit, and upon a motion for a further return from the justice, showing what the evidence, if any, upon the matter of title was. No proceedings of this kind were taken in the district court. On the contrary the ease appears to have been tried in that court without any objection to jurisdiction, or to the regularity or propriety of the manner in which the case came there.

Judgment affirmed.  