.

Dayton v. McElwee Manufacturing Company.

his own position as well as that of his adversary.

This

case of Tim v. Smith was affirmed by the court of appeals (93 N. Y. 87), and it has since been repeatedly followed. We think that the present motions come within the principle there enunciated. A junior attaching creditor, who seeks to destroy the lien of a prior attachment, because of jurisdictional defects, should come into court upon papers showing that every step in his own procedure was sufficient to confer jurisdiction. He should therefore present the papers upon which his attachment was granted, and prove that such attachment was actually levied upon the property covered by the prior attachment. It is only when these facts are made to appear that he shows himself to be "a person who has acquired a lien upon or interest in the defendant's property," within the meaning of section 682 of the Code of Civil Procedure. What is there meant is, of course, a valid lien, i.e., a lien resulting from the existence of all the necessary jurisdictional facts. Upon both principle and authority, it is reasonable to require the moving party to present such jurisdictional facts as a prerequisite to his attack upon the prior attachment. The plaintiff in the prior attachment should not be called upon to look up the papers upon which the junior attachment was granted, and to present them in opposition to the motion to vacate, for the reason that he makes no affirmative attack upon such junior attachment. He merely defends himself against it, and he should, therefore, have the opportunity of showing its inherent weakness upon the face of his adversary's motion papers.

The order should be affirmed, with costs.

Gould v. Patterson.

GOULD, APPELLANT, v. PATTERSON, RESPONDENT.

SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM; APRIL, 1892.

S$ 2863, 2951-2956.

Justice's court-question of title to land when does not deprive of jurisdiction-appeal.

Where in an action in a justice's court the title to land appears from the pleadings to be in question, but the defendant fails to give the undertaking required by section 2954 of the Code of Civil Procedure, the defendant waives all objections to the jurisdiction of the justice, and submits his rights to that tribunal upon the questions in issue raised by the pleadings.

In such a case, where it does not appear from the record on an

appeal to the county court from the justice's judgment that a question of title to real property was tried before the justice, the county court upon a new trial therein should not dismiss the complaint merely because the title to land was questioned on such new trial.

(Decided April 13, 1892.)

Appeal by plaintiff from a judgment of the county court of Livingston county dismissing his complaint on a new trial therein upon appeal from a justice's judgment in his favor for $20.

The opinion states the facts.

George W. Daggett for plaintiff, appellant.

E. C. Olney, for defendant, respondent.

MACOMBER, J.-This action was trespass, and was

Gould v. Patterson.

brought in a justice's court, in the county of Livingston, where, upon a trial by jury, a verdict of five dollars was rendered for the plaintiff, and thereupon, under the statute, treble damages were awarded by the court, and judgment for that sum was accordingly entered, together with five dollars costs. The defendant appealed to the county court, but such appeal was subsequently dismissed, and nothing arising upon such appeal appears to be material to any question existing in the record before us. The plaintiff also appealed and asked for a new trial in the county court, which was accordingly had. On such trial in the county court, a jury being waived, the county judge, at the close of the plaintiff's case, dismissed the complaint upon the ground, that under the plaintiff's own showing title to real estate came in question, holding, as we infer, that as, in like circumstances, the justice of the peace had not jurisdiction, so on appeal the county court likewise had no jurisdiction to try that issue under section 2956 of the Code of Civil Procedure.

By reference to the pleadings in the justice's court, it appears that the complaint of the plaintiff alleged that in the month of October, 1889, the defendant wrongfully and unlawfully entered upon the lands of the plaintiff, and did then and there, without the leave of the plaintiff, "who was in possession and the owner of said premises aforesaid," maliciously cut down a large number of trees, etc. The answer was, first, a general denial; and, secondly, an allegation that the land, upon which were the trees which were alleged to have been cut down and removed by the defendant, was owned by the defendant; that he had been in possession of the same for upwards of twenty years.

It will thus be seen, that there was an allegation of title in the plaintiff made by the complaint, and, in the answer, a general denial of such title, and an affirmative allegation that such title belonged to the defendant.

Gould v. Patterson.

By section 2863 of the Code of Civil Procedure (subd. 2), a justice of the peace cannot take cognizance of a civil action "where the title to real property comes in question, as prescribed in title 3d of this chapter."

By sections 2951 and 2952, which is in title 3d above referred to, the defendant may, either with or without other matter of defence, set forth in his answer facts showing that the title to real property will come in question. The justice must, thereupon, countersign the answer and deliver it to the plaintiff. The defendant must also deliver to the justice a written undertaking, executed by one or more sureties, approved by the justice, to the effect specially prescribed in the statute.

Under section 2954, if these two acts are done, that is, a written answer made containing such facts and undertaking given, the action before the justice becomes discontinued.

By section 2955, "If the undertaking is not delivered to the justice, he has jurisdiction of the action, and must proceed therein; and the defendant is precluded, in his defence, from drawing the title in question."

In the record before us, the defendant failed wholly to avail himself of the provisions of the statutes by which he was enabled, if he saw fit, to oust the justice of jurisdiction and have the cause tried either in the supreme court or the county court. Failing in that, he waived all objections to the jurisdiction of the justice, and submitted his rights to that tribunal upon the question in issue raised by the pleadings, even though facts were alleged in the pleadings showing that title to real estate did, in reality, come in question.

The question of title to the real estate upon which the growing trees were was tendered to the defendant by the complaint. It was so drawn that the defendant could set up his own title in the answer, and, on giving the requisite security, oust the justice of jurisdiction; but failing to give the security, he was precluded at the

Gould. Patterson.

trial from drawing the title in question. Such was the provision of the Code of Procedure (Adams v. Rivers, 11 Barb. 390). So much applies, however, only to the proceedings before the justice.

Upon the trial in the county court, the plaintiff's own testimony showed that title to real estate did come in question, and accordingly the county judge, acting, apparently, under section 2956 of the Code of Civil Procedure, dismissed the case upon the motion of the defendant's counsel. Section 2956 is as follows: "If, however, it appears upon the trial, from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint, with costs, and render judgment against the plaintiff accordingly." The learned county judge assumed, as we think erroneously, that he was hearing the same case that had been tried before the justice of the peace. But there is contained in the printed record before us the return made to the county court by the justice of the peace of the proceedings before him, and from such record it does not appear that the title of real property was in question and was disputed in that tribunal at the trial. The return, it is true, does not purport to give all of the testimony taken before the justice, nor does it say that it does not contain all of the testimony. The only inference which we can draw from it is that the trial did proceed before the justice of the peace without the question of title to real estate being raised by the plaintiff on his own showing, as it well might have been, notwithstanding the issue raised by the pleadings. The defendant at the trial might have relied and presumably did rely upon other defences than that of title, for he seems not to have raised any question, except by his pleadings, which would tend to oust the justice of jurisdiction.

What, then, the important question is, was the duty