
    Charles Obst v. H. Kohnhorst
    Judgment — Damages Assessed by Jury — Justice Court — Trespass.
    In an action for trespass, before a justice of the peace, a failure to have the damages assessed by a jury, will not make the judgment void, but voidable only.
    Same — Appeal.
    Such a judgment can only be corrected on appeal from the Justice Court to the proper tribunal, and not by objection in the Court of Appeals that judgment was void.
    Jurisdiction of Justice Courts — Jefferson County.
    An action for trespass quare clausum fregit, though by implication is an assertion of actual possession, does not come within the prohibition of the act of 4th of March 1866, Myers, Suppt. 575, regulating the jurisdiction of Justices of the Peace for Jefferson and Kenton counties.
    APPEAL PROM JEEEERSON CIROUIT COURT. COMMON PLEAS.
    October 20, 1868.
   Opinion oe the Court by

Judge Bobertson:

The appellee sued the appellant for $99.50 before a justice of the peace of tbe city of Louisville, for trespass quare clausum fregit and recovered a judgment for tbe amount claimed in tbe warrant. On an appeal to tbe court of common pleas, tbe appellant failing to appear, that court affirmed tbe judgment of tbe justice, and this appeal seeks a reversal on two grounds: 1, That the justice’s judgment was rendered without a jury. 2, That tbe justice bad no jurisdiction, because tbe title to land might have been involved in tbe action.

Riley, for appellant.

Pope, for appellee.

Neither ground is available in tbis court.

1. Failing to have tbe damages assessed by a jury, though apparently erroneous, did not make tbe judgment void. And tbe only way to correct that error was by tbe appeal taken to tbe common pleas. But the e^ror was waived in that court which properly affirmed tbe judgment under tbe authority of tbe 853rd section of tbe Code of Practice providing that “if tbe appellant fails to prosecute bis appeal from tbe justice it shall be at tbe option of tbe appellee either to proceed to trial on tbe appeal or have judgment rendered for tbe amount of tbe original judgment or costs where it was in bis favor.” Tbe elective judgment was accordingly rendered in tbis case; and it is now too late to object, for tbe first time, that tbe damages were assessed without a jury.

2. An act of tbe dth of March, 1866 (Myer’s Suppt. 575), gave to tbe justices of tbe peace for Jefferson and Kenton counties jurisdiction over all common law actions “regardless of tbe kind or nature of tbe action'when tbe matter in controversy, or sued for, exclusive of interest or costs, does not exceed one hundred dollars, qualified only by tbe proviso that they shall not have jurisdiction in any case where tbe title to real estate is involved, or an action to enforce a mortgage or lien.” Tbe action in tbis case did not assert a title to real estate. By implication it asserted actual possession, but did not imply title to tbe clause intruded on. Apparently, therefore, title to real estate was not, by warrant or plea, involved. Consequently tbe amount claimed’ being less than $100, tbe justice bad jurisdiction.

Wherefore, the judgment of tbe common pleas court is affirmed.  