Malson v. Vaughn

23 Cal. 61 | Cal. | 1863

Crocker, J.

delivered the opinion of the Court—Cope, C. J. concurring.

This is an action brought upon a promissory note against Bristol, as maker, and Yaughn, as indorser, before a Justice of the Peace. The defendant Bristol plead in defense a set-off against Yaughn, the payee of the note, amounting to five hundred dollars. The plaintiff recovered judgment before the Justice of the Peace, from which the defendants appealed to the County Court, where the Court found for the defendants and rendered a judgment dismissing the suit, from which the plaintiff appeals.

The note sued on was for the sum of one hundred and forty-five dollars and sixty-four cents, but the amount due thereon at the date, of the judgment, including interest, greatly exceeded two hundred dollars. The respondent objects that this Court has no jurisdiction of the appeal, and contends that the interest due on the note cannot be added to the principal in estimating the “ matter in dispute.” In this he is mistaken. The interest should properly be included in the estimate.

The set-off or counter claim set up by the defendant Bristol, in his answer, amounted to the sum of five hundred and ninety-three dollars and forty cents, and it is insisted that the amount being beyond the jurisdiction of the Justice of the Peace, the objection of the plaintiff to the filing of the answer on that ground should have been sustained by the Justice, and by the County Court when it was renewed. Sec. 574 of the Practice Act provides that in proceedings before Justices of the Peace “ the answer may contain a denial of any of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts constituting a defense or counter claim, upon which an action may be brought by the defendant against the'plaintiff in a Justice’s Court.” It is clear that the defendant could not have brought an action against the plaintiff in a Justice’s Court, upon the demand set forth in his answer by way of counter claim, and the Justice and County Court therefore erred in not sustaining the objection of the plaintiff. (Lamonn v. Caryl, 4 Denio, 370.)

The judgment is therefore reversed and the cause remanded.

See Hamilton v. McDonald (18 Cal. 128).—Reporter.