85 Ark. 213 | Ark. | 1908
(after stating the facts.) The question of jurisdiction first presents itself for our consideration.
Appellant contends that this is settled in its favor by the decision in the case, of State v. Scoggin, 10 Ark. 327. That case was an action for breaches of covenants of a bond. The State elected to wait until the breaches assigned were sufficient in amount to confer jurisdiction upon the circuit court, and that case is not like the present case. Nor does this case come within the rule announced in the case of Friend v. Smith Gin Co., 59 Ark. 86. That was a suit for breach of a contract guarantying the punctual payment of certain promissory notes, and the amount of the notes was the measure of damages.
The court is of the opinion that the present case is an attempt to evade the jurisdiction of the justice by a mere form of action. The contract in this case provided that a series of notes, of the amount of $26 each, should be given for the purchase price of the soda water apparatus. By the express terms of the notes the title to the property was retained in the vendor until paid for. The property was destroyed by fire before this action was commenced, and suit was brought upon the notes themselves. They are the foundation of the action, and are made exhibits to the complaint in compliance with section 6128 of Kirby’s Digest.
The original complaint and the supplemental complaint allege that the notes are due and unpaid. Each note, though on'e of a series, constitutes a separate cause of action. The point is expressly decided in the case of Brooks v. Hornberger, 78 Ark. 595. See also Smith v. Davis, 83 Ark. 372.
The amount of each note being $26/ and each note being a separate cause of action, the amount sued for is below the original jurisdiction of the circuit court in matters of contract, and the cause is therefore reversed and dismissed without prejudice to bringing another action.
On Motion to Retax Costs.
Opinion delivered March' 9, 1908.
PER Curiam. Judgment was rendered here in favor of appellant for the costs of appeal, and appellees seek to have that part of the judgment changed. They argue that, as appellant improperly commenced its action in the circuit court, which had no jurisdiction of the subject-matter, and has, by the judgment of this court, been turned out of court without any relief, it should be adjudged to pay costs of appeal. This does not follow.
It is true that the circuit court had no jurisdiction, and that appellant invoked the exercise of jurisdiction which that court did not rightfully possess. The court should not have undertaken to hear and determine the case upon its merits. But it did so, and rendered final judgment against appellant upon the merits of the controversy, and also adjudged the costs against) appellant. That was an erroneous judgment, and, notwithstanding the fact that it was a void one, appellant had the right to appeal from it. It did so, and this court reversed the judgment, but, instead of remanding the cause for further proceedings, dismissed the action for the reason that the circuit court had no jurisdiction.
The statute provides that “if the judgment be reversed, the plaintiff in error, or appellant, shall recover his costs.” Kirby’s Digest, § 970. On appeals from judgments at law it is obligatory on this court to follow the statute. It has no discretion in the matter of adjudging cost when it reverses a judgment.
Appellant did not obtain the relief which it sought by its appeal, viz., to have the case remanded for a new trial; but the judgment of the lower court ^as found to be erroneous, and was reversed.
This court has jurisdiction to render judgment for costs, even though the lower court had no jurisdiction of the subject-matter of the action. Cary v. Ducker, 52 Ark. 103; Hightower v. Handlin, 27 Ark. 20.
In Hightower v. Handlin, supra, the court said that “it is proper to render judgment for the costs made- in this court against the party bringing suit.” In that case the appellees were the plaintiffs in the court below, and this court, upon reversing the cause, rendered judgment against them for the costs of appeal in accordance with the mandate of the statute which we have just quoted, and not merely because they had originally brought the suit in a court which had no jurisdiction.
Motion denied.
