Kelley v. Taylor

34 Mass. 218

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1835
• Status: Published

Opinion

Per Curiam.

The question is, first, whether the plea of soil and freehold did not take away the jurisdiction of the justice of the peace ; and if so, then inasmuch as the party chose to put in issue the abuse of the cow, whether this did not restore the jurisdiction. We are of opinion that filing the plea took it away, and that it could not be thus restored. For suppose a replication to such a plea, and a rejoinder, surrejoinder, &c., the case might still go back to be decided or the plea

The next question relates to the amendment. We think it ought not to have been allowed. It changed the character of the cause. The action, as it went up to the Common Pleas, on the appeal from the justice of the peace, presented the issue of an injury to the plaintiff’s cow, but the amendment put in issue the title to real estate. Now, though if the action had been commenced in the Court of Common Pleas, the amendment would have been allowable, yet acting as an appellate court, it could not try any issue which might not have been tried before the justice. If the judgment of the justice had been on the same question as that of the Common Pleas, it would have shown that he had no jurisdiction. Further, where the action is,carried up, pursuant to the statute, upon a plea of title to real estate, the parties have a right to appeal from the judgment of the Common Pleas to the Supreme Court; but the effect of sustaining the amendment would be, to withdraw the action from the justice by appeal, and have a trial on the question of title in the Common Pleas, and then no appeal to the Supreme Court would be allowable.

Exceptions sustained.