Morrissey v. Morrissey

The plaintiff commenced this action in the superior court on a complaint containing two causes of action. In the first cause of action he alleged that he was the owner of a certain lot of land lying in the city of Oakland, and that the defendants willfully and unlawfully and without his consent permitted goats owned by the defendants to enter upon said land and to destroy ten fruit trees growing .thereon which were the property of the plaintiff and which were of the reasonable market value of $150. In the second cause of action the plaintiff alleged that he was the owner of a shed and thirty feet of fence located upon said lot of land of the value of $30, and it is alleged the defendants willfully and unlawfully and without the consent of plaintiff entered upon said land and removed therefrom and converted to their own use said shed and fence. The prayer followed for judgment in the sum of $180. The defendants demurred upon the grounds that the court was without jurisdiction of the subject matter of the action, and that the complaint failed to state facts sufficient to constitute a cause of action against them. This demurrer was sustained without leave to amend. From the judgment following plaintiff has prosecuted this appeal.

[1] The fruit trees, shed, and fence constitute part of the realty (Civ. Code, sec. 660), and were part of the real property alleged to belong to plaintiff. The purpose of the action is to recover damages for the injuries charged to have been committed by the defendants to said property. The ease, therefore, upon its face, is within the jurisdiction of the superior court, since one of its issuable allegations is the ownership of the real property described, and a traverse of this allegation will put such ownership in issue. That the answer to be filed may possibly not raise such issue is im

In some oases it has been said that where title or possession of real property is merely a fact in controversy, -arising incidentally or -as a collateral question, it could not be held that the action involved such title or possession (Pollock v. Cummings, 38 Cal. 683 ; Schroeder v. Wittram, 66 Cal. 636 [ 6 Pac. 737 ]); but the later decisions have held that this statement is too broad, and that the phrase does include cases where the title or possession is only incidentally involved, provided the issue of title or possession must be determined in order to decide the case (Williams v. Mecartney, 69 Cal. 556 [ 11 Pac. 186 ]; Hart v. Carnall-Hopkins Co., supra). [2] The true rule seems to be this: If the issue of title or right of possession is so involved that it must be decided in order to determine the case, the superior court has original jurisdiction, whether the involution may be said to be merely incidental or not (Dungan v. Clark, supra; 7 Cal. Jur., pp. 600, 601, secs. 19, 20).

[3] There is no merit in the suggestion that jurisdiction was conferred upon the justice’s court in a case of this kind by the provisions of subdivision 2 of section 112 of the Code of Civil Procedure, for it has been expressly held that under this section the justice’s court cannot exercise a juris

Judgment reversed.

Lennon, J., Seawell, J., Myers, J., Waste, J., Lawlor, J., and Wilbur, C. J., concurred.