Lyman v. Todd

43 Kan. 70

• Court: Supreme Court of Kansas
• Decided: January 15, 1890
• Status: Published

Opinion

Opinion by

Clogston, C.:

Plaintiff in error presents a number of questions, but, as the question of practice and the right of the court to dismiss the action will dispose of the case, we will not examine the other questions raised. This action, being for the possession of certain premises under the forcible-entry-and-detainer act, was one in which nothing could be determined save and except the right of possession. This right of possession does not necessarily depend upon title, nor does it necessarily involve the question of title, but is one of possession only. The affidavits presented by the defendant tended to show that the plaintiff’s title to the premises had been canceled, or that the title was in dispute and held by the government; and upon this showing the court held that it had no jurisdiction to try the action. In this|we think the court was in error. This action could be maintained, even though the government still held the title. The right as between the two settlers for the possession of the land might properly be determined in that action, and the question of title to the land afterward determined by proper proceedings in the land department of the government. The court by its decision on this motion was determining the merits of the action and the right of possession in a summary manner on a pretended claim of question of jurisdiction. This cannot be done. The plaintiff under his proceedings had a right to a trial by the court or by a jury, and to submit in such proceeding his evidence of right of possession, and if his right was paramount to that of the defendant, he was entitled to a judgment.

It is therefore recommended that the judgment of the court below be reversed, and the cause remanded for a new trial. By the Court: It is so ordered.

All the Justices concurring.