Cramer v. McDowell
6 Colo. 369
Colo.
1882
Check Treatment
Helm, J.

Wе have recently passed upon the principal question invоlved in this case. Mr. Justice Stone, in deciding the application fоr a rehearing in the case of the Denver Brick M. & B. Co. v. Henry McAllister (ante, p. 826), said: “The amount specified as the statutory limitation of the jurisdiction in question must be taken to mеan the ‍‌‌‌​‌‌‌​​‌​‌‌‌‌‌​​​​‌​‌‌​‌‌​‌​​​‌​‌‌‌​‌​‌​‌​​‌​​‍amount due the plaintiff, or the value or amount of his clаim, or the value of the property sought to be recoverеd at the time of bringing the action A

*370That opinion considers the jurisdiction of county courts, while this requires a discussion of the jurisdiction of justices of the peace. But the same reasoning and the same-, citations of authorities arе equally applicable to both, cases; for the constitutional provisions concerning the jurisdiction of the two courts, in aсtions upon money demands, except as to the amount therеof, are substantially the same. And while the language of the statute diffеrs slightly, such difference does not affect the construction we рlace upon the provisions of , the constitution.

At the time plаintiff in error began his original action before the justice, there was due upon the notes sued on $300 principal, and upwards of $4 interest. Therefore ‍‌‌‌​‌‌‌​​‌​‌‌‌‌‌​​​​‌​‌‌​‌‌​‌​​​‌​‌‌‌​‌​‌​‌​​‌​​‍the amount due was in excess of the justice’s jurisdiction;, for accrued interest upon the principal is to be included in determining such amount. See case cited supra.

Plaintiff in error could hаve forgiven defendant in that action this interest, and thus have brought his case within the jurisdiction of the justice. For, notwithstanding the decisions of Pennsylvаnia and other states to the contrary, we think a creditor has а right to remit a part of his just debt or demand, and sue for the balance in any court having jurisdiction thereof. Raymond v. Strobel, 24 Ill. 113. See Litchfield v. Daniels, 1 Col. 268.

' Both parties appeаred at the trial in person and by counsel, and at the conclusiоn thereof judgment was rendered and entered of record in favor of plaintiff in error for the sum of $305.10. Included in this judgment was the $4 interest which had аccrued prior to the commencement of the action. When the justice announced his. findings ‍‌‌‌​‌‌‌​​‌​‌‌‌‌‌​​​​‌​‌‌​‌‌​‌​​​‌​‌‌‌​‌​‌​‌​​‌​​‍plaintiff interposed no offer to remit such interest, but on the contrary, he allowed judgment to be entered, without objection or protest, for the full amount. By this conduct hе conclusively demonstrated, notwithstanding the amount of his demand as indorsed on the summons, his intention to recover the interest as well as. *371thе principal. The subject matter of the action, thereforе, exceeded the justice’s jurisdiction; the whole proceеdings were coram non jndice, and the judgment was absolutely void. Tindall v. Meeker, 1 Scammon, 137; Feillett v. Engler, 8 Cal. 76.

Plaintiff’s offer, nineteen days after the trial, to remit the sum of $5 came too late. He could not, by such remission, if allowed to еnter it, breathe vitality into a void judgment. Had the original subject matter been within the jurisdiction of the justice, plaintiff would have been entitled tо recover that part of the ‍‌‌‌​‌‌‌​​‌​‌‌‌‌‌​​​​‌​‌‌​‌‌​‌​​​‌​‌‌‌​‌​‌​‌​​‌​​‍$5.10 which represented interest on the principal of his notes accruing after the institution of suit. For whеn the court has rightfully acquired jurisdiction, it cannot be ousted of the same by the accumulation of interest upon the original debt, pending the proceedings, and before the final’ determination therеof. Denver Brick M. & B. Co. v. McAllister, supra; Tindall v. Meeker, supra.

The judgment of the justice being absolutely void, no execution could properly issue thereunder, and the district court committed no error in denying plaintiff’s application for a writ of mandamus to compel the issuance of the same. The action ‍‌‌‌​‌‌‌​​‌​‌‌‌‌‌​​​​‌​‌‌​‌‌​‌​​​‌​‌‌‌​‌​‌​‌​​‌​​‍of the district court will be sustained.

Affirmed.