delivered the opinion of the court.
The foregoing statement sufficiently presents the three more important questions involved in this controversy:
First. The sufficiency of the petition to confer jurisdiction upon the county court to entertain the proceedings; and, Second. The right.'to submit the question of compensation to a jury over the objection of respondent. Third. The validity of the judgment against respondent for petitioner’s costs.
The petition originally filed was defective in not averring that the amount of damages, if any, to the residue of respondent’s property, and the value of the strip of land sought to be taken, were within the jurisdiction of the county court; and counsel for respondent insist that, the jurisdictional averment being insufficient, the court had no power to grant leave to amend. With this we cannot agree. The defect might have been cured by amendment, if the petition had been attacked by demurrer. By section fifty of the Code of Civil Procedure, a want of jurisdiction of “ the subject-matter of the action ” is made a ground of demurrer. Section 74 provides that if a demurrer is sustained “ the unsuccessful party shall plead over or amend, upon such terms as shall be just.” The motion to dismiss in this case upon the grounds stated was the equivalent of a demurrer, and we can perceive no reason why the amendment might not be made upon proper terms as well as upon demurrer. As amended, the jurisdic*492tional averment was sufficient, and the court had jurisdiction of the subject-matter thereafter. The respondent continued to appear in the case and to contest the right of petitioner to condemn its property on other grounds than want of jurisdiction ; introduced evidence in support of its answer, and tried the issues joined upon their merits. We think the claim of the want of jurisdiction, as now presented, ought not to be sustained.
The action of the clerk in summoning, and the court in empaneling a jury, to ascertain the compensation to be awarded, was unwarranted. The eminent domain act, in so far as it provides for a jury upon request of any party other than the respondent, is in contravention of the express terms of section 15, article 2 of the Bill of Rights, which reads as follows :
“ That private property shall not be taken or damaged, for public or private use, without just compensation. Such compensation shall be ascertained by a board of commissioners, of not less than three freeholders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law,” etc.
It appears from the record not only that the jury was empaneled without the request of respondent, but against its consent and over its repeated objections. This was clearly error.
The statute, while it allows no cost to a party to whom compensation shall be awarded, if the amount of such compensation shall not be in excess of any lawful tender made by petitioner before proceedings are commenced, does not provide that he shall be liable for other costs, and if it imposed this burden upon him it would, in our opinion, be unconstitutional. It was error to impose the costs incurred by petitioner upon the respondent.
It is unnecessary to notice the other errors assigned, as thosé considered are decisive of the case, and compel a reversal of the judgment.
Reversed.