OPINION OP THE COURT BY
HARTWELL, J.The defendant brings a writ of error to correct numerous errors of law assigned by bim in an action of trespass brought against him by the plaintiffs before the district -magistrate of North Kona on the Island of Hawaii who gave judgment for the plaintiffs for $299, from which judgment the defendant appealed to the circuit court, where the case was tried resulting in a verdict for the plaintiffs for the same sum.
Sustaining, as we do, the plaintiffs’ contention that the magistrate had no jurisdiction of the trespass which involved a controversy concerning the title in the land trespassed upon, there is no occasion to refer to the other errors assigned.
The third assignment of error is: “That neither the District Court nor the said Circuit Court, and neither of them, had any jurisdiction of said action, since the same involved title to an *599estate in realty and the amount involved exceeded the jurisdiction of the District Court in which the action was originally brought.”
Smith cC- Lewis and L. J. TVarren for plaintiffs. J. W. Qathcart for defendant.The amount claimed by the plaintiffs was within the jurisdiction of the magistrate, but as there could be no trespass on land of which the plaintiffs were not actually or constructively in possession and as the defendant denied the plaintiffs’ right and claimed to be entitled in his own right to the possession, the magistrate should have declined to try the case, whether the defendant objected to his taking the jurisdiction or not, as soon as he saw that the defendant disputed the plaintiffs’ right. The statute provides that district magistrates “shall not have cognizance of real actions nor actions in which the title to real estate shall come in question.” Sec. 1662, E. L.
After the trial in the circuit court the defendant brought here a bill of exceptions including an exception to the denial of his motion to dismiss the case “on the ground that the evidence revealed an action involving title to real estate.” The exception was not sustained upon the ground that there was nothing to show, as the record now shows, that this defense was made.
We do not sustain the plaintiffs’ contention that this question of the magistrate’s jurisdiction cannot be raised on error in consequence of the defendant’s failure to present it in his bill of exceptions in such form as would permit its adjudication then. The question of jurisdiction was not passed upon and it could not be waived. The circuit court having no jurisdiction its judgment is vacated and the verdict set aside.