This action was brought in the justice’s court to recover the sum of two hundred and ninety-nine dollars and ninety-nine cents on a contract which reads as follows:
“San Francisco, July 22, 1892.
“Received of J. D. Hart, Esq., one hundred ($100) dollars, in full payment for ten (10) shares of the capital stock of the San Carlos Oil Company, and our services for locating the said J. D. Hart, Esq., on the limit •of the number of acres allowed by the homestead law, not to exceed one hundred and sixty (160) acres. Said location to be on vacant government land in San Benito •county, California.
“The Carnall-Hopkins Company,
“ By Gibbs & Zimmerman,
“ Mngs. C. A. Hep.”
It is alleged in the complaint that defendant failed to locate the plaintiff on certain vacant government land, or any land at all. In a verified answer the defendant denied each and every allegation of the complaint, and alleged that a determination of the action would necessarily involve the question of title and possession of real property; that the defendant did locate plaintiff on vacant government land in San Benito county, and that no person had any valid claim thereto at the time. Judgment was entered in favor of the plaintiff for the sum of one hundred and sixty-five dollars, ten dollars interest and costs of suit. Thereupon the defendant appealed to the superior court on questions of law and fact, where judgment was again entered in favor of plaintiff, and from this judgment defendant has appealed to this court.
*162Respondent has moved to dismiss the appeal on the ground that as the justice’s court had jurisdiction of the cause of action, the judgment of the superior court was final.
Our code provides that “the parties to an action in a justice’s court cannot give evidence upon any question which involves the title or possession of real property . . . . ; and if it appear from the answer of the defendant, verified by his oath, that the determination of the faction will necessarily involve the question of title or possession to real property, .... the justice must suspend all further proceedings in the action, and certify the pleadings .... to the superior court of the county.” The constitution gives the superior court jurisdiction in “ all cases at law which involve the title or possession of real property. The question is whether the issue as framed in the justice’s court involved the title or possession of real property.” In Holman v. Taylor, 31 Cal. 338, the court said: “The idea intended to be embodied in the phrase, ‘cases at law which involve the title or possession of real property,’ may be expressed by the paraphrase, ‘cases at law in which the title or possession of real property is a material fact in the case, upon which the plaintiff relies for a recovery, or the defendant for a defense.’” In Copertini v. Opperman, 76 Cal. 181, it was held that a vendee’s right to recover a sum less than three hundred dollars in the justice’s court caused by a defect in the title of the vendor depended primarily upon whether the defendants had a defective or good title which they'had contracted to sell, and that the superior court had original jurisdiction to hear and determine the controversy, although the amount claimed was less than three hundred dollars.
It is clear, we think, that the fact that the land was not vacant, that is to say that it was in the possession of another claiming the right to hold the same, “ is a material fact in the case, upon which the plaintiff relies for a recovery.” The court could not decide the issue without determining the question whether the land *163upon which the defendant attempted to locate the plaintiff was in fact in the possession of another.
Although the nature of the evidence cannot be considered in determining the question of jurisdiction, it may not be improper to say in illustration of the test given, that the evidence in the record shows clearly that the main question before the court before was whether or not the land was vacant, and to show that it was not the respondent himself introduced a decision of the register and receiver showing that one Benvenga had made actual settlement on the land, and was a bona fide settler thereon at the time Hart attempted to make an entry. The evidence further tends to show that Benvenga was in the actual possession of the land.
“The superior court had original jurisdiction of the subject matter, and the fact that the case gained ingress to it by a way other than the front door in no manner affects its jurisdiction to hear and determine the cause.” (Santa Barbara v. Eldred, 95 Cal. 381.)
Motion denied.
De Haven, J., concurred.