The Jefferson county court of common claims was created by a general act of the Legislature in 1931. Acts 1931, p. 621. Section 2 of said act (page 622) reads as follows: "Such courts shall have and exercise in their respective counties concurrently with the Circuit Court jurisdiction in civil cases where the amount involved exceeds the sum of One Hundred ($100.00) dollars and does not exceed the sum of $500.00."
Appellant filed suit against the appellee, claiming $500 on an account stated between plaintiff and defendant on to wit, the 1st day of May, 1932, which sum of money, with interest thereon, is now due and unpaid. The suit was filed on August 5, 1932. The defendant appeared specially for the purpose of filing a motion to quash the summons and complaint. The bill of exceptions recites that the court having intimated that the motion would be sustained and the cause dismissed, plaintiff asked leave of the court to be allowed to amend his complaint so as to reduce the amount claimed to $500, thereby bringing the cause within the jurisdiction of the court. The court stated that the complaint of the plaintiff could not be amended, as the court had no jurisdiction of the cause. Plaintiff then and there, in open court, immediately, before ruling was had on the motion to quash or the cause dismissed, tendered to the clerk, then present in court, a paper asking leave of the court to amend his complaint so as to claim only $500 from the defendant. The court then and there stated to counsel for plaintiff, in open court, that he could not allow such amendment, nor would he allow the clerk to mark said petition or request to amend the complaint filed. Counsel for plaintiff then *Page 525 requested that he allow the clerk to mark said paper, that is to say, the writing asking leave of the court to amend, "filed," so as to have same on file, and the court then and there reached out and took said petition, or request for amendment, and wrote on the back thereof, "Leave to file denied. Signed E. N. Hamill, Judge, 9/22/32," signing his name as judge of said court on the 22d day of September, 1932; said notation on the back thereof appearing as above set out. Counsel for plaintiff then and there, in open court, asked for a nonsuit with a bill of exceptions, which was granted by said judge.
The appellant assigns as error in this court that the court erred in not allowing plaintiff to amend his complaint so as to reduce the amount to $500.
The complaint shows on its face, and plaintiff's offer to amend was a confession, that as originally filed the suit was for an amount in excess of the jurisdiction of the court. It is the appellant's contention that, when he was met with a special appearance that challenged the jurisdiction of the court, he had the right to cure the objection to jurisdiction by an amendment.
We are of the opinion that the demand for a judgment is the test of jurisdiction, and where such demand exceeded $500, the court below was without any jurisdiction whatever in the premises; the court being expressly limited in its power to exercise jurisdiction only in an amount provided by the law of its creation.
We are unable to see how the court could acquire jurisdiction of a suit by amendment when it had no jurisdiction before amendment. The court had no more jurisdiction to allow an amendment than it did to render judgment for the amount claimed.
In support of the foregoing the following authorities appear to be conclusive.
In the case of McIntyre v. Carriere, 17 Hun (N.Y.) 64, it is said: "The difference in the present case is that the summons itself showed a want of jurisdiction. And it is difficult, therefore, to see how the court could acquire jurisdiction of a suit by an amendment, when it had no jurisdiction before the amendment. * * * This is not the case of a voluntary appearance, by which the court acquires jurisdiction without the service of process. Here the defendant was brought in compulsorily, and did not waive any of his rights; and, therefore, jurisdiction was acquired, if at all, only by the amendment of the process. And the court had no jurisdiction of the action, at the time it made the amendment; therefore the court had no power to amend."
In Pierson v. Hughes (Sup.) 88 N.Y. S. 1059, 1060, it is said: "It follows that, since the amount claimed exceeded $500, the Municipal Court never acquired jurisdiction * * * and consequently had no authority to amend the complaint or to take any action in the cause."
In the case of Gigliotti v. Jacksina,
In Seaboard Air Line R. Co. v. Ray,
For these reasons we are of the opinion that the judge below correctly decided this case.
Affirmed. *Page 526