Hart

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:

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.

*162 Respondent 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…

I concur in denying the motion. The complaint alleges that the plaintiff paid to the defendant one hundred dollars in consideration of its agreement to “locate” him on certain vacant government land in the county of San Benito, and that the defendant had wholly failed to carry out its agreement. In its answer the defendant alleges that it did so “ locate” the plaintiff, and that the property on which the location was made was “open to location,” and that no other person had any “valid claim thereto”; and that in consequence thereof the determination of the action involved the title and possession of real property. From these averments we cannot determine whether the title or possession of real property is necessarily involved. What significance must be given to the term “locate” must depend upon the sense in which it was used by the par *164 ties to the agreement and whether the property upon which the defendant claims to have “located” the plaintiff in purported performance of its agreement was “open to location,” or whether any person had a “valid claim” thereto, may present questions involving the title or possession of real property. Upon the present motion we are limited to…