Hannibal & St. Joseph Railroad v. Mahoney

Wagner, Judge, delivered the opinion of the court. In the District Court the judgment was affirmed without any discussion of the merits of the question raised, simply on the ground that the plaintiff had failed to file any motion for a new [471] trial or in arrest of judgment in the Circuit Court. The error complained of is apparent on the face of the record; refers exclusively to the jurisdiction of the court, and may be revised without the saving of exceptions or the filing of a motion for a new trial. The only question raised by the record is whether the Circuit Court had jurisdiction of the cause; and that may always be inquired into. The action was brought in the Circuit Court o£ Marion county against the defendant for trespass alleged to have been committed by him on land lying in Lewis county, claimed by the plaintiff. The answer denied the alleged trespass, denied that the plaintiff owned the land, but admitted that it was situated in Lewis county, and prayed that the case might be dismissed for want of jurisdiction. The Circuit Court dismissed the case accordingly. The action of trespass is strictly personal, and may be brought anywhere, regardless of the place where the supposed injury happened. But the decision of the court was evidently predicated on the opinion that, by a direct provision of our statute, the suit could only be prosecuted and maintained in the county where the land was situated, after the ownership was denied. By Gen. Stat. 1865, chap. 163, § 3, it is provided that “ suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county within which such real estate or some part thereof is situated.” The point involved in this case has never been before this court or received a direct adjudication. Can this suit be said to affect the title to real estate within the meaning of the statute ? Unquestionably the law contemplated an action where the real estate was the subject of the controversy, where the suit was in the nature of a proceeding in rem, affecting the land itself. In ejectment, to try title or obtain possession, the real estate is the main matter in issue. In partition, in actions for the foreclosure of mortgages, or to enforce mechanics’ or vendors’ liens, in petitions for the admeasurement or assignment of dower, and various other cases that might be put, the land is the immediate and primary subject, and the title is clearly affected. [472] In all such cases, where the title is to be affected, obviously suits concerning the same must be commenced and tried in the county where the land lies. But is the title in anywise affected in an action of trespass ? The primary object in trespass is to recover damages, not to try title to real estate; and it matters not which side is successful, the title remains unaffected. The plaintiff cannot obtain judgment without showing title, where his ownership is denied; but his proof of title is collateral, and a mere incident of the real issue, his right to damages. If the plaintiff shows title sufficient to enable him to maintain his cause of action, the judgment does not operate on the real estate or affect the title thereto. The proof of title only amounts to a link in the chain, among others, of the evidence by which he .supports his issue and recovers a general judgment for the wrong done him by the defendant. To come within the purview of the statute, it must be a ca^e not merely where the title is drawn in question, but where the title is to be affected. Entertaining these views, our conclusion is that the. statute does not apply to a personal action of this description, and that the judgment should be reversed and the cause remanded. The other judges concur.