Olson v. Shirley

• Decision Date: 28 May 1903
• Citation: 96 N.W. 297,12 N.D. 106
• Court: North Dakota Supreme Court

96 N.W. 297

12 N.D. 106

SOPHIA OLSON AND OLAF OLSON v. JOHN C. SHIRLEY

Supreme Court of North Dakota

May 28, 1903

Appeal from District Court, Ward County; John F. Cowan, J.

Action by Sophia Olson and another against John C. Shirley and wife. Judgment for plaintiffs, and defendants appeal.

Affirmed.

LeSuer & Bradford, for appellants.

The appeal, as to Mrs. Shirley, from justice court, should have been dismissed by the district court, since she was not served with summons, nor appeared, and objection to jurisdiction was seasonably and properly made. Vidger et al. v. Nolin, 10 N.D. 353, 87 N.W. 593; Leonosio v Bartilino (S. D.) 63 N.W. 543. Under section 6677 Rev Codes, notice to quit must be served, returned, and filed with the justice before he has jurisdiction to issue summons. Northwestern Loan & Banking Co. v. Jonasen et al., 82 N.W. 94. Justice cannot grant a motion for continuance to enable counsel to look up law, and granting such motion divests him of jurisdiction. Bonoit v. Revoir, 8 N.D. 226, 77 N.W. 605. The appeal was upon law alone. The district court upon its refusal to dismiss the appeal, should have remanded the case to the justice court for further proceedings in conformity to its order, and not proceeded to a final determination of the case. Coughran v. Wilson (S. D.) 63 N.W. 774; Lindskog v. Schouweiler, 80 N.W. 190. Justice's record, showing the filing of the notice to quit, on return day of summons, cannot be impeached collaterally by affidavit. Mouser v. Palmer (S. D.) 50 N.W. 967.

James Johnson, for respondents.

By appearing on return day and asking continuance for the purpose of correcting the returns, defendants gave jurisdiction to the court, even if service was defective. William Deering v. Joseph Venne, 7 N.D. 576, 75 N.W. 584. Justice did not lose jurisdiction by granting such continuance. Benoit v. Revoir, 8 N.D. 226, 77 N.W. 605.

OPINION

YOUNG, C. J.

This case is before us on the defendants' appeal from a judgment entered against them by the district court of Ward county. The action was brought in justice court to recover the possession of certain rooms in a dwelling house situated in the city of Minot, and for $ 75 delinquent rent. Two continuances were granted by the justice upon plaintiffs' motion and over defendants' objection. At the date of the hearing fixed at the last adjournment the justice, on defendants' motion, entered judgment dismissing the action upon the ground that he had lost jurisdiction by the adjournment. In due time the plaintiffs appealed to the district court upon questions of law only. When the case was reached in the district court, the defendants made a motion to dismiss the appeal upon five grounds, all of which related to certain alleged jurisdictional defects in the proceedings in justice court. It was not alleged that the appeal had not been properly taken and perfected, or that the record had not been transmitted by the justice, nor did it state any other ground affecting the right of the district court to hear and determine the questions of law presented by the plaintiffs' appeal. The motion was denied. Thereafter the defendants interposed a demurrer to the complaint upon the ground that there is a defect of parties plaintiff and defendant. The further proceedings are recorded in the abstract as follows: "The demurrer overruled, and defendants moved for leave to answer, which motion was granted, after which defendants filed their answer, and to the counterclaim pleaded in said answer plaintiffs demurred. The defendants asked leave to withdraw said answer, and said leave to withdraw was granted. Defendants being in default, plaintiffs offered proof before the court in support of their claim." Thereafter judgment was entered for plaintiffs for the possession of the premises in question and the amount demanded for rent, as prayed for in their complaint, from which judgment this appeal is taken.

It is urged by counsel for defendants that the district court erred in denying their motion to dismiss the appeal. In this ruling, in our opinion, no error was committed. All of the several grounds upon which the motion was based went to the proceedings in the justice court, and none of them affected the jurisdiction of the district court to hear and determine the plaintiff's appeal, which, concededly, was regularly taken and perfected. This being true, it would have been error to have granted the motion, and thus deprive plaintiffs of the right to have the action of the justice in dismissing their case reviewed in the district court. It is further urged that the court erred in overruling the defendants' demurrer. No error was committed in this ruling. The demurrer was on the ground that there is a defect of parties. There is, in fact, no defect in parties, and it is not claimed that there is. The defendant's contention is that there are too many parties. That...