I concur in the conclusion reached by Justice McKee, that the appeal herein should be dismissed, but on other grounds than those stated in his opinion.
The complaint in the justice’s court stated a case wherein that court had jurisdiction. On a demurrer to it, on the ground that the court did not have jurisdiction, the demurrer must have been overruled. This is the test of jurisdiction. (See U. S. v. Arredondo, 6 Pet. 709; Grignon’s Lessee v. Astor, 2 How. U. S. 338.)
Section 838, C. C. P., provides that “ the parties to an action in the justice’s court cannot give evidence upon any question which involves the title or possession of real property,” nor can any issue presenting such question be tried by such court; and if it appears from the answer of the defendant, verified by his oath, that the determination of the action will necessarily involve the question of title to or possession of real property, the justice must suspend all further proceedings in the action, and certify the pleadings to the Superior Court of the county; and from the time of filing such pleadings or transcript with the clerk, “ the Superior Court shall have the same jurisdiction over the action as if it had been commenced therein.”
The defendant in the action in the justice’s court did not file any verified answer, as required by the statute above cited. His answer was a general denial of the allegations of the complaint. It is true, he moved to transfer the action to the Superior Court, on the ground that the title to real property was involved. This did not oust the justice’s court of its jurisdiction. The *642justice was only called on to transfer the cause when a verified answer was filed, as required by the statute. The justice did not err, therefore, in proceeding with the cause. In the state of the pleadings before him, the justice could not hear any evidence upon any question involving the title or possession of real property. This was also true of the Superior Court, when the cause came before it on appeal. The court last named should have excluded all evidence in relation to title to real property, as there was no such question before it.
In this view the trial was regular; the amount in dispute being less than $300, no appeal lay to this court. For this reason, I am of opinion that the appeal should be dismissed.