Cornett v. Bishop , 39 Cal. 319 ( 1870 )

Sprague, J.,

delivered the opinion of the Court:

This is an appeal from a judgment of the Tenth District Court, on review by certiorari of proceedings of the County Court of Sutter County, upon appeal from the judgment of a Justice of the Peace.

The only question presented on this review in the District Court, and the only point presented on this appeal, is whether a Justice of the Peace has jurisdiction of an action for damages for trespass upon real estate when the only issues necessarily and actually involved in the case are the possession of the described premises by the plaintiff, the trespass thereon by defendant or his animals, the character of the inclosure thereof and the amount of damages sustained by plaintiff.

This question was directly decided in the affirmative by this Court in the case of Pollock v. Cummings (38 Cal. 683.)

The record in this case, as presented, fails to disclose that the right of plaintiff’s possession of the premises, upon which the trespass was alleged to have been committed, was put in issue by the pleadings, or in any manner controverted by the defendant on the trial.

It follows, therefore, that the judgment of the Court below must be reversed, and cause remanded, with directions to the Court below to dismiss respondent’s application.

So ordered.