Weaver v. English

• Citation: 27 P. 396,11 Mont. 84
• Parties: WEAVER v. ENGLISH.
• Decision Date: 27 July 1891
• Court: United States State Supreme Court of Montana

27 P. 396

11 Mont. 84

WEAVER v. ENGLISH.

Supreme Court of Montana

July 27, 1891

Appeal from district court, Cascade county; CHARLES H. BENTON Judge.

Action in ejectment by James Weaver against Robert English. Judgment for defendant. Plaintiff appeals. Reversed.

James Donovan and Sterling & Muffly, for appellant.

Geo. W Taylor and John W. Stanton, for respondent.

BLAKE C.J.

This action was commenced originally in the justice's court of Cascade county, and appealed to the district court. The complaint alleges that the plaintiff was in the peaceable possession of a parcel of land at a certain time, and that the defendant forcibly entered thereon, and continues in the wrongful occupation thereof. The answer contains as a defense this averment: "That on the 19th day of July, 1890, in an action then pending before John P. Dyas, a then justice of the peace in and for the county of Cascade, state of Montana between the above-named plaintiff, James Weaver, and this defendant, Robert English, involving the same cause of action and issues, and for the possession of the same land, as is involved in this action, this defendant recovered a judgment in his favor and against the plaintiff, together with his costs, and that at said time this cause of action was adjudicated." At the trial, all the papers on file in the action before said justice of the peace, and oral testimony relating to the same, were admitted in evidence. The plaintiff objected to this ruling of the court, and stated this, among other grounds, that "the defendant has failed to establish and prove the jurisdiction of the justice of the peace." There was no allegation of such jurisdiction in the answer, there was no proof thereof, and the subject was ignored in the instructions. These are the words of the court: "If you believe from the evidence that the case in the justice's court was between the same parties, involving the same land and the same question, as to the adverse possession at that time, and you are satisfied from the evidence that the case was tried and determined that would end the case right there, and it would be your duty to return a verdict for the defendant. The question as to whether it was adjudicated and tried, and whether it was the same parties and the same land, and all those questions are entirely for the jury to decide; but, if you decide that such is the fact, that is the end of the case, and you need go no...