Butcher v. Smith

29 Ohio St. 604 | Ohio | 1876

Boynton, J.

The action before the justice of the peace-was brought to recover a balance claimed to be due on a promissory note. The amount claimed was three hundred, dollars. The amount appearing from the note to be due was three hundred and ten dollars and fifty-three cents. It is contended by the plaintiff, that the justice had no jurisdiction of the subject of the action: because, first, the fifth section of the justices code (1 S. & C. 770) limits the jurisdiction of the justice, in an action brought to recover .a balance claimed to be due on any open or unsettled account, or on any bill, note, or bond, to cases where the balance claimed is less than three hundred dollars. And secondly, if this position is not well taken, it appearing from the note sued on, that over three hundred dollars were due thereon, it is insisted that no jurisdiction was or could be .acquired by the justice.

The correctness of these positions depends upon the construction to be given to certain provisions of the statute. The fourth section of the act regulating the jurisdiction and procedure before justices of the peace, supra, originally declared that, “under the restrictions and limitations herein provided, justices of the peace shall have cognizance of any •sum not exceeding one hundred dollars.” This was also the language of the act of 1881 (Swan’s Stat. 506). By this section, as amended May, 1854, now in force, the jurisdiction was enlarged by extending to the justice, under the •.same restrictions and limitations, jurisdiction concurrent with that of the court of common pleas, in sums over one hundred dollars, and not exceeding three hundred. The fifth section of the act of 1853 was amended at the same time, and by the same act, giving a like extension of concurrent jurisdiction in actions to recover a balance due •on any open or unsettled account, ór on any bill, note, or bond, where the balance claimed is over one hundred dollars, and does not exceed three hundred. The seventh section was also amended by conferring on the justice power to render judgment, on the confession of the debtor, in any .sum not exceeding three hundred dollars.

Now, while the fifth section declares that where the bal.ance claimed to be due on any open or unsettled account, bill, note, or bond, shall be less than three hundred dollars, ;.the action may be brought before a justice of the peace, we think it clear, from’ all the provisions of the statute ■bearing on the question, that the legislature intended to confer jurisdiction to recover, such balance, where the amount claimed equals, but does not exceed that sum. The same section authorizes the justice to render a judgment in such case for any balance not exceeding three hundred ■dollars, and if the construction contended for by the plaintiff is. accepted or adopted, it involves the necessity of holding that it was intended to confer upon the justice power fo render a judgment for a suin greater than the plaintiff had the right to claim.

The provisions of the fifth section were not intended to limit or restrict the jurisdiction created by the fourth, but, as was said in McKibben v. Lester, 9 Ohio St. 628, they were intended to enlarge the class of cases -in which the enlarged jurisdiction is conferred by the fourth section, by extending it to an action upon contracts for a still larger amount, where the balance claimed to be due does not exceed the .sum of three hundred dollars. Job v. Harlan, 13 Ohio St. 488.

The second ground assumed by counsel, that it appearing from the note sued on, that a sum exceeding three hundred .dollars was due thereon, the justice had no jurisdiction of the cause, and that he acquired none from the circumstance that the plaintiff only claimed a judgment for that amount, is disposed of by the statute. The first clause of section 108 of the justices act is in the following language: “ When the amount due to either party exceeds the sum for which the justice is authorized to enter judgment, such party may remit the excess, and judgment may be entered for the residue.” Under this provision the justice was fully authorized to render a judgment for three hundred dollars upon the plaintiffs remitting, the excess above that sum. And the plaintiff having limited his demand for judgment to that amount, he was properly held to have remitted all above it.

Leave refused.