Whitney v. Bowen

11 Vt. 250

• Court: Supreme Court of Vermont
• Decided: January 15, 1839
• Status: Published

Opinion

The opinion of the court was delivered by

Bennitt, J.

The only question in this case is whether the justice ha 1 jurisdiction of the original action. If he had not, the whole proceedings were coram non judice, and void; and no action can be maintained on his judgment. By the statute regulating the jurisdiction of justices of the peace, (Comp. stat. 139,) they have no jurisdiction in actions where the title of land is concerned. There can be no doubt that many cases may arise, other than real or mixed actions, as they are termed, in which the title to land may be concerned. An action of covenant broken on a deed of conveyance, where the breach assigned is that the defendant was not seized, or had no right to convey the lands, brings the title directly in question, and a justice has, in such case, no jurisdiction. Bickford v. Page, 2 Mass. R. 462, note. Hastings v. Webber, 2 Vt. R. 407. So, probably, an action on the case against a sheriff for a defective levy of an execution on veal estate, would form another instance.— There can be no doubt that in an action for a nuisance affecting the real estate of the plaintiff, the interest of the plaintiff in such estate is put directly in issue. If he has no interest, most certainly he is not the person who sustains damage.—

We also understand this same question has been formerly decided in this county, in the case, if I mistake not, of Underwood v. Walker, which is not reported. The judgment of the county court is, therefore, affirmed.