#### PHILLIP VERBECK, Plaintiff in Error, *vs.*WILLIAM W. VERBECK, Defendant in Error.

ERROR TO THE WASHINGTON CIRCUIT COURT.

Ia order to give the Circuit Court jurisdiction of a cause certified from a Justice of the Peace on account of the interposition of a plea of title to lands, it should appear clearly from the plea or notice, that the title to lands mil come in question in the cause.

A notice attached to a plea of the general issue in trover, that the defendant owned the land upon which the stacks of grain sued for were situated, does not necessarily show that the title lands will come in question in that suit.

The statute having prescribed the manner in which cases commenced before a Justice of the Peace may be removed to the Circuit Court, the mode thereby provided must be pursued, and the statute complied with in order to give that court jurisdiction.

It is error for the Circuit Court to retain jurisdiction of a cause certified up by a Justice of the Peace improperly, and upon an insufficient showing in the plea or notice, that title to lands will come in question ; and the party who filed the plea and at whose instance the cause was certified up may assign the same for error.

Tbe plaintiff in tbe court below brought an action of trover before tbe Justice of tbe Peace and filed bis declaration for tbe taking and converting, by tbe defendant to bis own use, tbirty-nine bushels of winter wheat, of tbe value of forty-four dollars; thirty-two bushels of rye, of tbe value of twenty-four dollars, and eighty bushels of oats, of tbe value of twenty-four dollars, to tbe damage of tbe plaintiff of one hundred dollars. Tbe defendant pleaded tbe general issue. Tbe cause after-wards went to a jury, who were sworn, and, pending tbe trial, tbe plaintiff offered an amended declaration, under objections by tbe defendant, which were overruled by the Justice, and filed tbe same, to which tbe defendant filed a plea of tbe general issue, attached to which was tbe following notice: — “ Take notice that on tbe trial of tbe above cause, tbe defendant will *160give in evidence that tbe stacks of grain in tbe said plaintiff’s amended declaration mentioned were upon tbe soil and free-bold of tbe said defendant, and in bis possession, and that tbe said defendant in bis own right took tbe said wheat, rye and oats at tbe time when, &c., as tbe close, soil and freehold of tbe said defendant; and did all and singular tbe acts whereof tbe said plaintiff in bis amended declaration complains, as be lawfully might.” Tbe defendant, at tbe time of filing bis plea and notice, also filed with tbe Justice a bond in tbe usual form where a plea or notice of title is interposed, whereupon tbe Justice discharged tbe jury and made bis return of tbe cause to tbe Circuit Court of Washington County.

Tbe circuit court entertained tbe cause, and it was tried in that court, at tbe October Term, 1856. A jury having been sworn, and tbe plaintiff having rested bis case, tbe defendant’s attorney filed a motion to dismiss tbe cause, “ for tbe reason that the said court bad no jurisdiction of tbe cause — there being no plea or notice in tbe same, showing that tbe title to lands will come in question.” Which motion was overruled by tbe court, and tbe defendant excepted.

Exceptions were also taken to various instructions denied by tbe court below; but tbe points raised on them are not noticed in tbe opinion of this court, and they are consequently omitted here. ■

*Frisby <& Mann,*for tbe plaintiff in error.

I. Tbe circuit court acquired no jurisdiction of this cause. Tbe statute in such case made and provided, was not complied with. Tbe plea and notice accompanied with bond were not offered at tbe time of joining issue, but after issue joined, jury empannelled, and tbe calling of witnesses. Tbe statute should have been strictly complied with, *Dylceman vs. Build,,*3 Wis., 640 ; *Willoughby vs. Jenks,*20 Wend., 100 ; 15 John., 304; 7 Wend., 291; 2 Mass., 174. Tbe plea or notice to plaintiff’s amended declaration does not show that tbe title to lands will come in question, but involves a question of actual possession merely, which tbe justice could try. *1616 Hill, 537; 2 Mass., 171. The defendant’s motion to dismiss for want of jurisdiction, ought to hare been granted by the court. The question of jurisdiction can be raised at any time. *Varney vs.*Gaswell, 3 Wis., 741.

*Thorp and*Shelley, for defendants in error.

I. The court did not err in oyerruling the motion to dismiss. 1st. The bond given by the plaintiff in error, recites that, under the plea of the general issue, he gave a notice showing that the title to land would come in question in this suit. The bond is a record, and the plaintiff in error is estop-ped by its recitals. Arch. Civ. PL, 206 ; *Outlet vs.*Diohmson, 8 Pick., 385; *Love vs. Roclewell,*1 Wis., 382; .3 Bl. Com., 216.

H. The court has no power to dismiss a suit when certified to it by a justice of the peace, on plea of title interposed ; — ■ the certificate of the justice gives the court jurisdiction of the subject matter, and the appearance of the parties gives the court jurisdiction of them. Revised Stat.,151; 2 Caines, 131; *Onderdcmh vs.*Rcmlett, 3 TIill, 123 ; 3 Caines, 329.

in. The justice is to determine whether the plea or notice that the title to lands will come in question is sufficient or not.

7 Wend., 291; *People vs. Onondaga Oo.,*2 Wend., 261.

IV. The plaintiff in error having, by his own act removed the cause from the justice to the circuit court, cannot be admitted to take advantage of his own wrong.

*By the Coivrt,*

Whitost, C. J.

We shall not discuss all the questions argued by the counsel for the parties in this case, because we are satisfied that the Circuit Court did not acquire jurisdiction of it, and that for this reason, the judgment must be reversed. The statute provides that in every action commenced before a Justice of the Peace', 'when the title to lands shall in any wise come in question, the defendant, at the time when he is required to join issue, may plead specially any *162plea showing that the title to lands will come in question;. ox’ may, under the general issue, give notice to that effect. At the time of tendering such plea, or plea and notice, the defendant must also enter into a bond to the plaintiff, with security, in the penal sum of two hundred dollars, conditioned that if the plaintiff shall prosecute his suit in the county, (now Circuit,) Court, and if judgment be rendered against the defendant, on his plea of title, he will pay the amount of such judgment, with costs.

TJpon filing the plea and bond, the justice is to certify the case to the Circuit -Court, which thereby becomes possessed of the case with power to proceed therein to final judgment in the same manner as though the suit had been commenced iix that court. Rev. Stat., Chap. 88, § 52, 53, 54, 55, 65. It will be seen that these proceedings all depend upon the fact that the plea or notice shows that the title to lands will come in question. Unless this fact appears, the justice has no authority to certify the case to the higher court. Now, the notice which the defendant appended to his plea of the gen-ei’al issue disclosed no such fact.

The action was trover for the conversion of thirty-nine bushels of wheat, thirty-two bushels of rye, and eighty bushels of oats. The fact stated in the notice that the stacks of grain in' the plaintiff’s declaration mentioned were upon the soil and freehold of the defendant, was entirely immaterial. This might be true, and yet the plaintiff’s right to the grain be perfect. We do not see how the fact that personal property is situated upon the land of the defendant can determine the right of the parties to it. The fact stated in the notice that the defendant owned the land upon which the grain was situated, did not show that the title would- be drawn in question on the trial of the suit.

Ve therefore think that the justice should have proceeded to try the case, and that the Circuit Court did not obtain jurisdiction of it by the action of the parties and the justice.

But it is claimed by the defendant in error, that as the Circuit court had jurisdiction of the subject matter of the suit, *163and as the appearance of the parties before that court gave it control of them, the court was correct in retaining the case and deciding it on its merits. This argument would be entitled to great weight did it not involve a palpaple evasion of the statute. That has prescribed the manner in which cases which are commenced before Justices of the Peace, shall be taken to the higher courts, and we cannot sanction a practice' which does not comply with it. *Dykeman*vs. Budd, 3 Wis. R., 640.

It is claimed on the part of ,the defendant in error, that as the defendant before the justice, after filing his plea and notice, executed his bond conditioned to pay the judgment which the plaintiff might recover against him in the Circuit Court, he is now estopped to set up a want of jurisdiction in the court. This might be conclusive against the plaintiff in in error if the action was upon the bond, but it cannot be relied upon to show that the Circuit Court had jurisdiction of the case. *Love vs. Rockwell,*1 Wis., 382.