DISSENTING- OPINION OP
QUARLES, J.In my opinion, on an appeal in a summary possession case from a district court to the circuit court, the case being tried de novo, the position of the parties is not changed and any step which could properly be taken in the district court *72by the defendant can be taken in the circuit court. In my opinion the plea to the jurisdiction, filed by the defendant in this case in the circuit court, ousted that court of jurisdiction. Where the district court had no jurisdiction, the circuit court on appeal has none. This rule was decided in Lewers & Cooke v. Redhouse, 14 Haw. 290, the court at page 294 saying: “This being a question of jurisdiction over the subject matter, it may be raised in this court on appeal, even though the record of the district court does not show that it was raised there except in the notice of appeal filed after judgment was rendered,” citing Tong On v. Tai Kee, 11 Haw. 424; Wedgewood v. Parr, 112 Iowa 514. See also The King v. Ikeole, 4 Haw. 413; Roy v. Scott, 17 Haw. 598.
In Tong On v. Tai Kee, 11 Haw. 424, plaintiff sued in the district court for specific performance of a contract. The case was appealed to the circuit court where plaintiff obtained judgment. The case was then appealed to the supreme court which held that the district court having no jurisdiction the circuit court acquired none. At page 427 the court said: “No plea to the jurisdiction was made below, and court and counsel proceeded with the case as if law had cognizance. But parties cannot by waiver confer jurisdiction over the subject matter upon the court. Kona Coffee Co. v. Circuit Court, 10 Haw. 572.” In Jardin v. Madeiros, 9 Haw. 503, it was held that a plea of former adjudication could be made in the circuit court on appeal although not made in the district court. In Ward v. Kamanaoulu, 9 Haw. 619, it was held that a plea of title in the defendant in a case of trespass quare clausum fregit ousts the court of jurisdiction without the introduction of evidence, and this ruling was followed in Brown v. Koloa Sug. Co., 12 Haw. 409.
The court has jurisdiction in cases of summary proceeding to recover possession of land “only when the relation of landlord and tenant confessedly exists” (Kaaihue v. *73Crabbe, 3 Haw. 776; Coney v. Manele, 4 Haw. 154; Harrison v. McCandless, 22 Haw. 129).
In my opinion the appeal to the circuit court vested it with such jurisdiction only as the district court possessed and is tantamount to the granting of a new trial of a district court case in the circuit court. Under the authorities stated the plea, which should have been, but was not, made in the district court, may yet be made in the circuit court. Our statute (R. L. Sec. 2297) withholds jurisdiction from district courts in all cases wherein the title to land is involved.
In Coerper v. Gouveia, 21 Haw. 270, the court at page 273 said: “In an action for summary .possession, even though the evidence offered in defense may bring the title to the premises in question, it does not necessarily follow that such evidence is, for that reason alone, inadmissible. However, as section 1662, R. L. provides that district courts 'shall not have cognizance of * * * actions in which the title to real estate shall come in question/ the jurisdiction of the court ceases the instant it is discovered that 'the title to real estate’ has come in question. The question of title is generally presented by plea and affidavit before the trial begins, as the defendant attempted to do in this case, but the fact may afterwards be disclosed on the trial of the case by the evidence introduced. It is immaterial, however, at what stage of the proceedings the fact is disclosed, for at that instant the proceedings must be arrested, because the court is then without jurisdiction to proceed further in the case. Parker v. Bussell, 3 Blackf. (Ind.) 411, 415; 12 Ency. Pl. & Pr. 675, 676, 677, 679; 11 Cyc. 699, 701.”
In my opinion the plea to the jurisdiction filed was sufficient and put in issue the fact of the relation of landlord and tenant between plaintiff and defendants, as well as the fact that the defendant Ah Sing was claiming title to the *74premises in dispute under purchase at judicial sale of the claim of Hop Sing Company. I do not understand rule 15 of this court to require that the plaintiff, shall in an affidavit accompanying his plea to the jurisdiction of the court de-raign his title back to the government. I think there is enough in the plea to show that the issue of title was raised, and under the statute, irrespective of court rule, jurisdiction was ousted.
In my opinion there is no doubt but what the plea to the jurisdiction filed in the circuit court was properly filed there and ousted the court of jurisdiction in this case, for which reason it would follow that the judgment was void, and therefore the motion to dismiss the writ should be overruled.