This is аn appeal from a judgment for plaintiff, rendered by the superior court, in the sum of $271, together with interest thereon аt the legal rate to date of judgment, amounting to $97.20.
The action was brought in the justice court, where it was tried upon thе issues raised by the answer of defendant to the complaint. The justice of the peace rendered judgment fоr the plaintiff for the principal sum of $235.05, together with interest in the sum of $75.47.
Defendants appealed to the superiоr court upon questions of law and fact.
Before the cause came on for trial in the superior court defendants moved said court to dismiss the action upon the ground that neither the justice court nor the superior cоurt had jurisdiction of the action, for the reason, as defendants claimed, that it appeared upon the face of plaintiff’s complaint that the amount sued for exceeded the sum of $300, *93 exclusive of interest. The motiоn was denied. Subsequently when the cause was called for trial upon its merits defendants renewed their motion, and it was аgain denied, and the court tried the cause upon its merits.
At the conclusion of plaintiff’s evidence defendants mоved for a nonsuit upon the ground that the court had no jurisdiction for the same reasons as were urged upon the mоtion to dismiss.
We believe the law to be that where, as in this case, a defendant, after appealing to the superior court upon questions of law and fact, seasonably challenges the jurisdiction of the court to try the аction upon its merits, by reason of want of jurisdiction of the justice court over the subject matter of the action appearing upon the face of the record, such defendant is entitled to a judgment or order dismissing the action for want of jurisdiction to try it upon its merits.
(Ballerino
v.
Bigelow,
We therefore pass to the consideration of the contention that the complaint upon its face shows that the.justice court did not have jurisdiction of the action, for the reason that plaintiff sued for a sum amounting to $300 and over, exclusive of interest.
The complaint filed in the justice court consisted of a copy of a bill, as is allowed in such courts, made up of various debit items under various dates, amоunting to the sum of $362.50. There next followed several credits under various dates aggregating $91.50. The complaint or coрy of the bill then concludes with the following entries:
“Nov. 21, 1905, balance.........................$271.00
Nov. 9, 1909, to 3 years-11% mos. interest due on note at 10% 107.66.”
*94 It is claimed by appellants that it thus appears from the face of the complaint that the item under date of November 9, 1909, of $107.66 was сlaimed as a principal sum, and not as interest upon the balance of $271 sued for.
We cannot agree with this сontention. The most that can be fairly claimed is that the complaint is uncertain or ambiguous. No attack, however, was made in the justice court on this ground or any other. It does not appear that it ever occurred to defendants until after the cause had been appealed to the superior court that plaintiff had sued for a sum, exclusive of interest, -in excess of $300.
It may be noted that the sum of $107.66, claimed as interest under date November 9,1909, is thе correct amount of interest at ten per cent upon $271, the balance stated under date of November 21, 1905, for the period, between said dates, which period amounts to three years eleven and two-thirds months. The words “due on note” in the item as to the interest suggest the idea that the amount of the balance sued for as the princiрal sum was also evidenced by a note. Nevertheless, the complaint is fairly and most reasonably susceptible of the interpretation that the interest claimed was interest on the identical sum of $271, constituting the balance of the principal sum claimed. That such was the interpretation put upon the complaint by defendants is manifest from the fact that they did not attack the jurisdiction of the justice court or the sufficiency of the complaint in such сourt by demurrer or otherwise. The same interpretation was put upon the complaint by the justice of the peace as is evidenced by the entry in his docket as to the amount of the demand, which is “Demand $271.00 and interest.”
The same interpretation of the complaint was followed by the plaintiff in his affidavit for an attachment, in which he set forth that defendants were indebted to him in the sum of $271, “together with interest thereon from Nov. 21, 1905, at the rate of ten per cent рer annum, ’ ’ etc.
Where, as in this case, a pleading is perhaps ambiguous and uncertain, or susceptible of two interpretations as to. its meaning, and all parties to the action apparently adopt and acquiеsce ip. an interpretation that sustains the jurisdiction of-the court as to the subject matter of the action, thе losing party-in such court should not be allowed upon appeal for *95 the first time to insist upon a different interprеtation of the pleading—one that will oust the court of its jurisdiction. If the uncertainty in the complaint had been pointed out in the justice court, it could have been readily amended so as to have certainly corrected the defect and placed the question of jurisdiction beyond cavil.
We are therefore of the opiniоn that the record shows that the sum claimed in plaintiff’s complaint, exclusive of interest thereon, did not amount to $300, аnd the justice court therefore had original jurisdiction of the action, and the superior court had appеllate jurisdiction thereof to try the same upon its merits.
It follows that this court has no jurisdiction of this appeal other than to order a dismissal thereof, and this appeal is accordingly dismissed.
Kerrigan, J., and Lennon, P. J., concurred.