Page:North Dakota Reports (vol. 3).pdf/402

 These allegations showed conclusively that the controversy be- tween the parties arose over a question of title to land, and consequently that the justice could have no jurisdiction to try the case. Hence the District Court instructed the jury, quite properly, that the proceedings in the justice’s court gave the defendant no right to evict Schmitz, nor could such proceedings furnish any legal excuse for compelling Schmitz to vacate. It is entirely proper to allow Schmitz, as a witness in his own behalf, to state all the facts and circumstances surrounding his removal from the land; and he was obliged, under the allegations of eviction set out in the complaint, to prove the fact that he was forced to leave the land. Defendant: objected to plaintiff's evidence on this feature of the case, and moved to strike it out. The court refused to strike it out, and we think quite properly. While testifying as to his removal from the land, Schmitz was asked this question: “State what kind of a place you had to go to live in after you were put off this land.” He answered: ‘Well, I went over to Lewis Wright's, and slept in the barn, in the hayloft, two miles east, or two and a half, from where I lived. Q. How much of a family have you? A. We had one. I had a wife and child coming two years old. Q. You are of German decent? A. Yes sir.” “No, I cannot read English, so I cannot write.” These questions were all objected to as incompetent, irrelevant, and immaterial. The objections were overruled, and the court refused to strike out the testimony, and defendant took exception to the several rulings. We think the evidence was foreign to the issue, and was erroneously allowed to remain in the record; but, after a very careful consideration of the entire record, we are convinced that the error was a harmless one. The testimony referred to certainly could not have operated to influence the jury to find a verdict for defendant. That was out of the question. The trial court, in plain terms, instructed the jury that defendant's pretended title to the land was worthless, and that their verdict must be for the plaintiffs. The court said: “I charge you as a matter of law, that the plaintiff's are entitled to recover in this case, and