Johnson v. Johnson, 7705

• Decision Date: 09 December 1957
• Docket Number: No. 7705,7705
• Citation: 86 N.W.2d 647
• Parties: Ida C. JOHNSON, Plaintiff and Respondent, v. Leroy JOHNSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 647

86 N.W.2d 647

Ida C. JOHNSON, Plaintiff and Respondent, v. Leroy JOHNSON, Defendant and Appellant.

No. 7705.

Supreme Court of North Dakota.

Dec. 9, 1957.

Syllabus by the Court.

1. The requirement of Section 28-0401, NDRC 1943 that an action for certain enumerated causes affecting real property must be brought in the county in which the subject matter of the action or some part thereof is situated subject to the power of the court to change the place of trial upon agreement of counsel or in other cases provided by statute pertains to the jurisdiction of the court rather than the venue of the action and the court has no jurisdiction of an action which is brought in a county other than that prescribed by this Section.

2. Acquiescence, personal appearance or participation in an action pertaining to real property brought in the wrong county in violation of Section 28-0401, NDRC 1943 does not confer jurisdiction of the subject matter upon the court.

Friederich & Ziegler, Rugby, for plaintiff and respondent.

Heringer, Nelson & McClintock, Rugby, Duffy & Haugland, Devils Lake, for defendant and appellant.

MORRIS, Judge.

This matter comes to us upon an appeal from an order made by the District Court of Pierce County on April 26, 1957, continuing in effect a Restraining Order that had been entered by the court on April 12, 1957. The plaintiff instituted these proceedings by a Summons and Complaint. The Complaint states that the plaintiff is the owner and entitled to possession of a certain described tract of real estate situated in Bottineau County being three quarter sections of farm land. The defendant during the years of 1954, 1955 and 1956 occupied the land under an annual farm lease which was extended from year to year. It is alleged that on or about December 1, 1956 the plaintiff and defendant made a complete and final settlement as landlord and tenant,

'and that the foregoing lease or any extension thereof was terminated, and the defendant advised by this plaintiff that said premises would no longer be available to him for the farming season 1957 or subsequent years.'

It is further alleged that the plaintiff entered into an agreement with a third party to have the farm operated for the year 1957 and that the defendant threatens to proceed with farming the land for 1957 contrary to the plaintiff's direction and wishes. It is also alleged that plaintiff will be unable to comply with the agreement made with other persons and irreparable damage will result from the action of the defendant. The plaintiff prays that until the final hearing of the case the defendant, his servants and agents be enjoined and restrained from interfering with the property or entering upon or cultivating the same or performing acts as a tenant and interfering with the plaintiff's use and occupation of the land and that upon a final hearing the injunction be made perpetual.

Upon the filing of the complaint, which was verified and accompanied by an affidavit of the plaintiff setting forth in some detail the matters alleged in the Complaint, the court issued an Order to Show Cause for a hearing to be held on April 24, 1957 and restraining the defendant in the meantime upon the giving of a bond for $1,500. The defendant made a Return to the Order to Show Cause in the form of an Affidavit in which he set forth his possession and right to possession under the lease mentioned in plaintiff's complaint. He states that in 1956 he summer fallowed and prepared for crop 145 acres and did considerable discing and other cultivation on the premises, that he cleaned the necessary wheat for seeding the crop on the premises, and that he has at no time received any notice from the plaintiff canceling the contract under which he has been in continuous possession with the consent of the plaintiff and that it is his understanding that he was to farm the premises during the farming season of 1957. He also alleges that he has stored on the premises farm machinery that he has used and will be required to use in farming the land involved in this action.

The defendant in his Return further sets forth that on April 5, 1957 he was served with a Notice to Quit signed by the plaintiff which stated:

'You are hereby notified to quit and surrender the following described premises which you are holding over after the termination of your lease and after the expiration of your term * * *.

'You are further notified to remove from said premises, or any part thereof any personal property now situated upon said premises which belong to you.'

The defendant also alleges that the plaintiff has an adequate remedy at law and is not entitled to an injunction. A copy of the lease is attached to the Return.

After a hearing on the Order to Show Cause held in Rugby, the County Seat of Pierce County, on April 26, 1957, the court continued the temporary injunction until the trial of the case on its merits. The appeal is from this Order continuing the injunction.

At the threshold of our consideration of the matter lies a question of jurisdiction. The land covered by the lease the continuation of which is claimed by the defendant and the termination of which is claimed by the plaintiff all lies in Bottineau County. The action was brought in Pierce County and all subsequent proceedings have been taken in that county. These proceedings include a hearing at which the defendant appeared and submitted a Return to the Order to Show Cause. The defendant contends that the subject of the action is a right or interest in land situated in Bottineau County, that the District Court of Pierce County therefore has no jurisdiction of the subject matter. He argues that his appearance at the hearing was a matter of personal jurisdiction that did not and could not confer jurisdiction over the subject matter upon the District Court of Pierce County and that the latter court had no power to either issue originally or continue in effect after hearing the preliminary injunction. The plaintiff contends that this controversy involves only a matter of venue and not jurisdiction of the subject matter.

From the territorial days until the adoption of NDRC 1943 our statutes provided that actions for certain enumerated...