McLeod v. Ellis

• Decision Date: 11 February 1891
• Parties: MCLEOD v. ELLIS.
• Court: Washington Supreme Court

26 P. 76

2 Wash. 117

MCLEOD v. ELLIS.

Supreme Court of Washington

February 11, 1891

Appeal from superior court, Thurston county.

Allen & Ayer, for appellant.

J. W. Robinson, for appellee.

STILES J.

This action was commenced in the territorial district court held in Thurston county for triple damages upon a complaint containing the following allegations: "(1) That between January 1 and September 1, 1889, the defendant entered upon the south half and the north-east quarter of the north-east quarter of section 33, in township 21 north, range 1 west of the Willamette meridian, in the state of Washington, being situated in the county of Pierce, and owned by this plaintiff, and in his possession; and did then and there without leave of plaintiff, cut down, remove, dispose of, and convert to his own use the proceeds thereof, about _____ trees, containing fourteen hundred thousand feet of lumber of the value of four thousand two hundred dollars. (2) That by reason of said removal and conversion the said defendant became and is indebted to plaintiff in the full sum of four thousand two hundred dollars, no part of which has been paid and defendant has refused and does now refuse to pay the same or any portion thereof. (3) That by force of section 602 of the Code of Washington defendant became and is liable to plaintiff in the full sum of twelve thousand six hundred dollars." The land upon which the acts complained of were committed was in Pierce county. The defendant's demurrer to the jurisdiction of the court for the reason that the action was not commenced in the proper county was overruled, and the cause proceeded to judgment.

The Code, both by its express terms and by inferential provisions, seeks to reduce every private wrong to a dead level, so far as pleading is concerned, so that a complaint containing a plain statement of facts serves to lay the cause of action before the court, no matter what may have theretofore been the technical form or name of the remedy. Accordingly, chapter 49 of "Waste and Trespass" was adopted in furtherance of the general plan. The injuries to land which, when committed by persons lawfully in possession thereof, had been cognizable in the technical action of waste, were assembled in section 601, while those in which a stranger to the land was the wrong-doer, and which had been cognizable in the action of trespass, were collected and provided for in sections 602 and 603. The common-law remedies remained, although there made statutory, and the nature of each action continued as before, though they are now known as actions for injuries to real property, instead of waste in the one case and trespass in the other. Therefore, unless the last clause of section 50 applies as well to the actions included in section 47 as to those included in section 48 the Thurston district court had no jurisdiction of the cause if it was one for injuries to land. Section 47 pointedly says that actions for injuries to real property shall be commenced in the "county or district" in which the subject of the action, or some part thereof, is situated. If commenced there, they must be tried there, unless removed for reasons sufficient under section 51. But appellee contends that the last clause of section 50 shows that the requirement that these actions be commenced in the particular county or district is merely directory, and that, unless the defendant moves in the manner provided therein, the trial may be had in any county or district selected by the plaintiff. It is agreed that no affidavit of merits, and no demand for a trial in Pierce county, were made. We cannot agree with this contention, however. There is a marked difference between the language of section 47 and sections 48 and 50. The former refers to a peculiar class of actions, which were always local; while the latter only includes actions which were always transitory. The first named says the actions specified must be commenced in certain counties or districts; while the others only require the trial to be in the county or district where the property is or the defendant resides, as the case may be. Coming in the connection where it is, and in view of the difference in language, we are constrained to hold that the last clause of section 50 does not apply to the actions enumerated in section 47. Still another objection is raised, however, namely, that section 47 does not absolutely require actions for injuries to real property to be commenced in the county where the subject of the action is situated, but extends the jurisdiction to the whole judicial district, which, in this instance, included both Pierce and Thurston, as well as many other counties; and, if that position is correct, the Thurston county court was fully authorized to entertain the action. But we are not satisfied that the term "district," as used in section 47, has the meaning claimed for it. The four judicial districts formerly existing under the territorial régime were merely divisions of the territory for the asssignment of the judges, and for some purposes of United States jurisdiction. No jurisdiction of matters cognizable under the territorial laws merely was based upon those districts. Here, as in the states, counties were the units of...