McGinty v. Warner

By the Court. Ripley Ch. J. Beers,' city justice of Owatenna, before whom this action was pending, on defendant’s motion and affidavit, transferred it under Gen. Stat., ch. 65, sec. 18, to Bliss, a justice of the peace of Owatonna, before whom plaintiff appeared generally, (and defendant specially, and moved that the action be dismissed, because “ the certificate of justice Beers is insufficient to confer jurisdiction.” The said certificate attached to the transcript of Beers’ docket received by Bliss, to which the papers in the action were annexed, except the affidavit which for some unexplained reason failed to reach him, was as follows : “ I certify that these are all of the [43] papers in the canse of Neil McGinty vs. Anson Warner, and a true copy of my docket.” That part of the transcript relative to the transfer is as follows: “ Defendant made affidavit that he could not safely proceed to trial before the undersigned, and asked for a change of venue. The court granted the change, and sent the cause before P. Bliss, Esq., of the city of Owatonna, at 1 p. h.” Upon the prescribed affidavit, and payment of his costs, the justice is to “ transfer said action, and all papers appertaining thereto, to another justice, who may thereupon proceed to hear and determine the cause,” &c. Gen. Stat. ch. 65, sec. 18. Jurisdiction is conferred by the order for transfer of the justice before whom the action is pending, made upon affidavit therefor, pursuant to the statute, and entered in his docket. Rahilly vs. Lane, 15 Minn. 447. The docket entries above quoted, though not couched in technical language, amount we think to such an order. All informalities and inaccuracies of expressions in such records, which are made up by persons not learned in the law, and from whom technical correctness is not to be expected, will be disregarded. It is sufficient if the meaning is ascertainable, and that it is conformable to law. It is not necessary that the affidavit should be set out in -the docket either verbatim or in substance. The defendant cites and relies on the statement in Barnes vs. Holton, 14 Minn. 357, that in an action before a justice court, the record must show facts which confer upon it jurisdiction, both of the person and cause of action ; but the affidavit, when filed, is as much a part of the record, in the sense in which that language is applicable to this case, as the docket itself, or as the written pleadings would be, and the defendant would scarcely contend that these were not such. As the case stood before Bliss, the affidavit not appearing [44] nor its absence accounted for, it presented a case not of want of jurisdiction but of diminution of tbe record. If, in sucb a case, it had appeared affirmatively from tbe transcript, that tbe transfer bad been made upon grounds for which tbe law does not authorize a transfer, sucb transcript, upon a motion to dismiss by tbe party against whose wishes the transfer bad been ordered,'might he prima facie evidence that sucb order had been improvidently made, and did not confer jurisdiction. But this is not that case. One ground of transfer is an affidavit that tbe justice, before whom the action is pending, is a material witness for tbe party seeking tbe transfer, without whose testimony be can not safely proceed to trial. Tbe above quotation from Beers’ docket as to tbe affidavit is entirely consistent with its having been sucb an one as above mentioned. If this transfer bad been made at plaintiffs instance, defendant would not, nevertheless, have been entitled to a dismissal of tbe action, until, tbe record having been supplied by proper proceedings had thereto, it bad thereupon appeared that the affidavit was insufficient. A fortiori, tbe transfer having been made at bis request, it does not lie in bis mouth to say that there is a want of jurisdiction, because, in tbe absence of bis own affidavit, tbe transcript does not show affirmatively that it was sufficient. As against him, at all events, it is to be presumed that it was, until, by its production or in some other competent manner, he proves tbe contrary. Tbe justice erred also in giving judgment for costs against tbe plaintiff. If he bad not obtained jurisdiction of tbe action, all be could do would be to dismiss it. That plaintiff appeared generally makes no difference. Consent, whether shown by an appearance or otherwise, will not confer jurisdiction in these cases. Rahilly vs. Lane, supra. Upon this record, however, it appears that Bliss bad juris [45] diction to hear and determine the case in the same manner as Beers might have done, and the appeal being upon questions of law and fact, the district court, instead of dismissing the action, should have tried it in the same manner as if originally commenced there. Laws of 1868, ch. 93, sec. 2, p. 135. Order reversed.