Hill v. Wait

| Vt. | Jan 15, 1831

Lead Opinion

Paddock, J.

Two questions are presented by these exceptions for the consideration of the Court. 1. Whether the County Court had appellate jurisdiction ; or in other words, whether the writ was so drawn as to give the justice of the peace exclusive jurisdiction. The declaration sets forth a judgment of $5,30 damage and 25 cents costs, and concludes “ to the damage of the plaintiff $20,00.” The question has long been agitated in the lower Courts whether the ad damnum or the cause of action declared on should be the criterion in determining the jurisdiction of a justice of the peace ; and the practice is very unsettled, particularly in cases where their adjudication is final; and the decision of our County Courts have not been uniform in sustaining appeals of that character; but in some cases have been governed by the amount of the plaintiff’s demand,and in others by the amount of the ad damnum; and it is of little consequence which shall be adopted, compared with the necessity of having the question put at rest. In the case of Church vs. Van Duzer decided last week’in Franklin county, the plaintiff in an action of book debt, had laid his ad damnum at $10 and the amount which he exhibited before the justice amounted to $10,60; an appeal was taken to the County Court, and a motion to dismiss for want of appellate jurisdiction was overruled, and this Court affirmed the judgment. Again, in the case of Reynolds and Wife vs. Robinson, decided on writ of error in Franklin County 1822, the ad damnum was $20, the amount on oyerG was $1,50, the County Court on motion, dismissed the action for want appellate jurisdiction,and this Court reversed - their decision; and it would seem that the point to be decided in this case, falls directly within the-decision last cited; for where the Court has the question of jurisdiction before them, it is immaterial whether the amount of damage is to appear1 from the declaration or a specification of the claim ; and as the case of Reynolds and Wife vs. Robinson, the defendant in error, must be considered as settling the law where the ad damnum is laid over $10 ; so ,does the case of Church vs. Van Duzer, where the amount- exhibited is over $ 10,and both Were' appealable. And the Court are unanimous in the opinion, that to give the justice exclusive jurisdiction, the ad damnum must not be laid over, nor the sum in demand appear from the declaration, or specification or exhibits of the plaintiff, to be more than $10.

The jurisdiction of the justice being sustained, our next enquiry is, whether Ezra Pike could legally render a judgment in favor of this plaintiff; they being related within the 4th degree of affinity. In the1 23d section of the act defining the powers of a justice of the peace, it is declared “ that no justice of the peace shall take cognizance of any cause, where he shall be- within the 1st, 2d, 3d, or 4th, degree of affinity or consanguinity to either of the parties, or shall be directly or indirectly interested in the cause of matter to be determined.” Arid in the ease of Bates vs. Thompson, reported in 2d, Vol. Chip. R. 96, it was determined by the Court, that the entering u-p of a judgment by a justice of the peace, upon the voluntary confession of the debtor, was- takmg cognizance of a cause, within- the meaning of this section; and as the justice was the owner' of the' demand- upon which he- took the confession, the record was adjudged void; and we see no reason for calling.' in question the propriety of that decision; therefore the1 judgment against Pettis upon which the execution in qües--tion- issued, must be pronounced void.

As it respects the execution, it being legal upon the face-of it, would have justified the officer had he levied and collected the amount of Pettis ; and yet the plaintiff cannot. 1‘SCOYer of him in a charge of neglect of duty in not collecting and paying the amount over; for in this as well as otjiei, caseg^ ¡.Q rnake an officer liable for neglecting to collect an execution the plaintiff must show a judgment ^lat not void. For these reasons, the judgment of the County Court must be affirmed*

Judgment affirmed.

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Dissenting Opinion

Hutchinson, C. J.

dissented. — Í am not fully satisfied, that the decision now made, pursues the principle we have adopted in some other cases. AÍlúsion is made to the case’ of Robertson & Wife, before this Court several years ago. I fully approve of that decision, as if is stated. It is said the plaintiff, in his action on book before a Justice of the' Peace, laid his ad damnum at twenty dollars; but exhibited an account of only one or two dollars. He recovered,- and the defendant appealed;" and the plaintiff moved to dismiss the appeal, because the action was not appealable. The Supreme Court correctly decided, that this motion of the plaintiff should not prevail; because he had brought such an action, that, for ought appearing in his declaration, he might prove himself entitled to recover twenty dollars; and his offering evidence to prove less than ton dollars, when he might or might not have more in his power, should not deprive the defendant of his right of appeal. In the case before us, the ad damnum is twenty dollars, but the cause of action, particularly described, shows-that the plaintiff can not be entitled to recover any more' than five dollars and fifty five cents, being the amount of the execution delivered to the defendant, to collect, adding interest upon that sum for a short time. There is no allegation of any special damage resulting from the defendant’s neglect. It is not easy to conceive of any damage that could exist beyond the loss of the debt; but if any existed, it could not be recovered without a special allegation. In'an action of trover for converting a five dollar Bill, the measure of damages would be no more fixed and certain at five dollars and the interest, than they are in this-case at five dollars and fifty five cents and the interest.— For this r'ea'son, I think the action was not appealable.— Where the cause of action, thus described, gives a rule for certain damages, the sum in the ad damnum may be consid-tered accidental and unimportant. We have just decided, at St. Albans, that an action was appealable, where the ad damnum was ten dollars only, yet the account exhibited in evidence exceeded that sum. So, in Baker vs. Blodget, where the action was not appealable in itself, it was decided to have become so by the plaintiffs plea in offset. In another case still, we have decided, that a fictitious offset should not render the action appealable. We may not yet have seen all the questions, that may be raised about the ten dollar jurisdiction of justices. But I fully agree with my brethren, that an appeal must be allowed, where the s%d damnum exceeds ten dollars, and the case presented in the declaration, is one of uncertain damages, like trespass, ■or ease for some wrong, where the damages must necessarily be uncertain; but not so where the sum is necessarily below ten dollars, as in the case now decided.