Baker

This action was brought by the plaintiffs in the justice’s court to recover the sum of one hundred -and thirty dollars, the value of a cow and a steer alleged •to have been killed by a train on defendant’s road.

*505 An answer was filed in which it was alleged, among other things, that the determination of the action necessarily involved the question of title to, or possession of, real property, and said cause was accordingly certified to the superior court under the provisions of section 838 of the Code of Civil Procedure.

Thereafter, on the twenty-second day of January, 1895, an order was made by said superior court on motion of the plaintiffs, and without notice to the defendant, granting plaintiffs leave to file an amended ■complaint, and the complaint, upon which this action was tried in said court, was thereupon filed. Afterward, on February 1, 1895, the defendant, upon notice duly given, moved the court to strike out said amended complaint, and to vacate the order under which the same was filed, basing said motion upon various grounds stated therein.

This motion was denied, the defendant demurred to said amended complaint, the demurrer was overruled and an answer filed;…