Bonnell v. Gill , 41 Colo. 59 ( 1907 )

Mr. Justice Goddard

delivered the opinion of the court:

No exception to the final judgment having been tallen and preserved, we are not called upon to consider the sufficiency of the evidence to support the judgment. The only question presented for our determination is whether the county court erred in denying appellant’s motion to dismiss the action because of the refusal of the justice of the peace to certify the cause to the district court. Counsel for appellant insists that the verified answer filed with the justice put in issue not only the title to the premises, but all the other allegations of the complaint, and under section 1237 of the Laws of 1877, section 1495 Geni. Stats, (if still in force), and also under the forcible detainer act as amended in 1887, it was the dutjr of the justice to suspend all proceedings and certify the cause to the district court, and that the proceedings, had before him subsequent to the overruling of the motion to certify the cause, were without jurisdiction and void, and the only jurisdiction acquired by the county court on the appeal was to dismiss the case.

1. We think the record presents three sufficient answers to this contention. The first paragraph of the answer is, at most, a general denial. — Donovan v. Main, 77 N. Y. Supp. 229, 232. It is an attempt to put in issue the title to the real estate in question. If the statute of 1877 is still in force, it becomes the duty of a justice of the peace to stay proceedings and certify the cause when “it shall appear' * * * from sufficient affidavit or the evidence presented upon the trial of the cause that the title * * * is in dispute and an adjudication of the same may be necessary.” The title of the appellee to the premises is, therefore, not put in issue by this denial, or by the additional answer of the appellee, and the motion to certify tlie cause upon the ground that the title was in dispute was properly overruled.

2. The reasons assigned in the motion filed in the county court for the dismissal of the case were not presented to the justice of the peace, but his authority to proceed with the trial of the cause was challenged, -as we have seen, for another and different reason, and one clearly unavailable. If a party desires to have a case certified to the district court under the provisions of the statute of .1887, he must make application to the justice at the earliest oppor-' tunity, and he may not, after trial to the justice on the merits, and on appeal from an adverse judgment, raise the question of the right of the justice to proceed with the trial after filing an answer as provided in conformity with the provisions of such section, for the first time in the county court.

'3. But aside from the foregoing reasons, we think the contention of appellant cannot prevail for the further reason that the answer does not conform to the requirements of section 12 of the forcible entry and detainer act, in that it fails to ‘ ‘ specifically admit or deny all of the material facts set forth in -the complaint. ’ ’ This clearly appears from an examination of those parts of the complaint and answer above set forth. The second paragraph in the answer is not sufficient in this respect, and the fourth paragraph does not attempt to deny the facts set forth in the fourth paragraph of the complaint, which facts, if true, are determinative of the right of the appellee to recover in this action. It simply denies a legal conclusion, and raises no issue.

For the foregoing reasons, the motion to dismiss the action was properly overruled by the county court. Our conclusion is that the county court had jurisdiction to hear and determine the cause, and its judgment cannot be disturbed for any reasons presented in this record. The judgment is therefore affirmed. Affirmed.

Chief Justice Steele and Mr. Justice Bailey concur.