REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF UTAH. (Continued from Volume 38) STATE ex rel. BURT v. DISTRICT COURT OF BOX ELDER COUNTY et al. No. 2186. Decided January 17, 1911. On Application for Rehearing March 18, 1911 (114 Pac. 143). 1. JUSTICES OF THE PEACE COMPLAINT SUFFICIENT ALLEGATIONS— VENUE. Comp. Laws 1907, section 3668, prescribes the place where actions in justice courts shall be commenced and tried. Subdivision 3 provides in cases of injury to the person or property such actions shall be brought in the precinct or city where the injury was committed, or where the defendant resides. Section 3685 provides that the complaint must be in writing, verified, and fully allege at least one of the grounds mentioned in section 3668. Section 3685x provides that every judgment given on a complaint not legally verified, or which contains no allegation, or untrue allegations, of the jurisdictional fact required by this section, shall be void. A complaint in an action against a railroad company for negligence in killing a horse on its tracks, alleging that in the western part of Box Elder Precinct in said Box Elder County, Utah, the track of the Oregon Short Line Railroad Company unites with the track of the Central Pacific Railroad Company, and that such railroad at such place, and south and east thereof, passed through lands owned and improved by private owners; that at such place the track should have been fenced, but that the railroad companies had failed to keep the fence in repair so as to keep out animals; that plaintiff's horse strayed onto said tracks at 39 Utah] (1) a point where fences were defective, and continued therefrom eastward upon said track used by said defendants between Brigham City and Corinne; and that the defendants carelessly operated a locomotive and train of cars so as to run over his horse and kill it-sufficiently states the place where the horse was killed as in Box Elder Precinct of Box Elder County to admit evidence on the point, in the absence of special demurrer for uncertainty, and was sufficient to give the court jurisdiction against a motion to dismiss. (Page 5.) 2. JUSTICES OF THE PEACE-PLEADING-RULES OF CONSTRUCTION. In determining whether the jurisdictional facts appear from the pleading, the same rules of construction with respect to the pleadings in justices' courts must be considered and applied as in all other courts. (Page 2.) CONSTRUCTION-STATUTORY 3. JUSTICES OF THE PEACE-PLEADING REQUIREMENTS. Comp. Laws 1907, section 2986, provides that in the construction of a pleading for the purpose of determining its effect its allegations must be liberally construed with a view to substantial justice between the parties; and in view of the provisions of section 3685, providing that a complaint in a justice court must be in writing and verified, and set forth at least one of the grounds mentioned in section 3668, stating that the action has been commenced in the city or precinct as required by said section, and section 3685x, providing that every judgment given on a complaint not legally verified or containing no allegation, or untrue allegations, of the jurisdictional fact required by such section, shall be void, are highly technical, and do not affect the substantial rights of the parties, the courts, under the liberal provisions of the code of civil procedure of this state, are not authorized to require more than a substantial compliance with those sections. (Page 8.) 4. MANDAMUS-COSTS-PARTIES LIABLE. Where plaintiff obtained a judgment in a justice's court and defendant had it set aside by a district court without a hearing, on the ground that the justice's court had no jurisdiction, plaintiff is entitled to costs in proceedings in the Supreme Court to obtain a writ of mandate to compel re-instatement against all defendants except the district judge. (Page 10.) Mandamus by the People on the relation of Joseph Burt, against the District Court of the First Judicial District in and for the County of Box Elder, and W. W. Maughan, judge thereof, and others. Peremptory writ issued against respondent to compel the district judge to reinstate and try a certain action dismissed by him on an appeal from the Justice Court of Box Elder Precinct in Box Elder County, to show cause why he refused to do so. WRIT GRANTED. R. H. Jones for plaintiff. P. L. Williams, Geo. H. Smith and H. B. Thompson for defendants. FRICK, C. J. The plaintiff filed an original application wherein he asked this court to issue an alternative writ of mandate requiring Hon. W. W. Maughan, as district judge of the District Court of Box Elder County, to reinstate and try a certain action dismissed by him on an appeal from the Justice Court of Box Elder Precinct in Box Elder County, or to show cause why he refuses to do so. An alternative writ was duly issued, and the judge appeared in this court and made answer thereto. The material facts are substantially as follows: The plaintiff herein in January, 1910, commenced an action before a justice of the peace of Box Elder Precinct in Box Elder County, Utah, against certain railroad companies to recover the value of a certain horse, which, it, was alleged in plaintiff's complaint filed in said action, belonged to him, and that said defendants had killed by negligently operating an engine and train of cars. The defendants or some of them duly appeared in said action, joined issue upon the facts, and a trial was had upon the merits before said justice of the peace, which resulted in a judgment in favor of the plaintiff for the value of said horse. The defendants duly appealed said cause to the District Court of Box Elder County. After the case had been transferred to and was pending in said court, the defendants filed a motion in said court to dismiss said action upon the sole ground that neither the justice of the peace who had entered judgment nor the district court had or that said district court could acquire jurisdiction of said action. Upon consideration of said motion, the district court sustained the same and dismissed said action, and, there being no remedy by appeal or otherwise from such judgment of dismissal, the plaintiff presented his application as aforesaid upon the ground that the district court wrongfully and without any legal authority or cause dismissed said action, which it is alleged falls within the rule announced in the case of Hoffman v. Lewis, 31 Utah 179, 87 Pac. 167. Section 3668, C. L. U. 1907, prescribes the place where actions in justice courts in this state shall be commenced and tried. Subdivision 3 of said section, which is the only one material here, provides: "In cases of injury to the person or property-in the precinct or city where the injury was committed or where the defendant resides." Section 3685, so far as material here, provides what the complaint filed in the justice court must contain, namely: "The complaint must be in writing, and must be verified, and must fully allege and set forth at least one of the grounds mentioned in section 3668, showing that the action is commenced in the city or precinct as required by said section." Section 3685x, so far as material, is as follows: "Every judgment made or given on a complaint not legally verified, or that contains no allegation, or an allegation that was untrue, of the jurisdictional fact required by this section, shall be void; and shall be so declared, on review, at the instance of the party aggrieved." It also provides that said review may be on appeal. The district judge contends that the judgment rendered by the justice of the peace which was appealed from was void because the plaintiff herein in his complaint filed in said. action had not alleged the jurisdictional fact required by said section 3685. The question, therefore, is: Does the complaint upon which the judgment in question was based "contain no allegation" of the jurisdictional fact required by the section aforesaid? If the complaint contains an allegation which would authorize the introduction of evidence upon the subject of the place where the injury to the horse 1 was inflicted, the allegation as against a motion to dismiss the action (which is in the nature of a general demurrer to the complaint) must be held sufficient. A statement in a complaint of a material fact or issue may be very defective, yet, if such a statement is sufficient to admit proof of the fact attempted to be stated, the complaint is nevertheless sufficient, at least as against a general demurrer, and at all events as against a collateral attack. The rule upon this subject is well stated by Mr. Pomeroy in his Code Remedies (3d Ed.), section 549, where the author says: "The doctrine to be gathered from all the cases is that if the substantial facts which constitute a cause of action are stated in the complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and defective, such insufficiency pertaining however to the form rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment." (Italics ours.) Of course, under our practice, the defective statement would have to be assailed, not by a motion, but by a special demurrer pointing out the defect, and thus require the pleader to cure the defective statement by making it more definite. The theory upon which the foregoing doctrine rests, and it is the true one, is that a defective or incomplete statement of a material allegation does not constitute a total failure of statement, but it at most is merely a defective or incomplete statement of a material ultimate fact which may always be cured by amendment. From this it follows that such a defect is one of form rather than of substance, and, where such is the case, the complaint always supports a judgment. Mr. Pomeroy, however, points out the true and only test which is to be applied under such circumstances, namely, are the allegations of the complaint sufficient when considered together to admit proof of the fact or facts which it is contended are material to sustain a judgment? In applying this test, it is not of controlling importance that the al |