122 P. 671 | Okla. | 1912
This was a suit by the firm of Mills Orme against the Miller Grain Company, H. W. Morgan, Oscar Diehr, and T. F. Johnson, for $145, as damages for the conversion of certain corn which plaintiffs allege defendants had converted, and upon which the plaintiffs claim to have held a chattel mortgage, executed by one Eckewaudauh. There was a judgment for plaintiffs for $127.65, and defendants have appealed.
It is contended, first, that the county court had no jurisdiction in the case, because the amount in controversy is less than $200. This contention cannot be sustained. The point is decided adversely to the contention of defendant in the case of Cooper v. Austin,
The defendants attempted to justify the taking of the corn by showing that it was taken under an execution issued upon a judgment of a justice of the peace against the mortgagor in the case of Diehr v. Eckewaudauh. The action of Diehr v. Eckewaudauh was brought since statehood, and that judgment is in the following form:
"Comes now the defendant in person on this day, to wit, October 9, 1908, and enters an appearance, waives issuance of summons, and confesses judgment as prayed for in plaintiff's bill of particulars. Therefore it is by the court considered, ordered, and decreed that the plaintiff have and recover of and from the defendant the sum of $200 and the costs of this action taxed at $42.65, including $40 attorney's fees."
The court permitted the plaintiff to introduce in evidence the note sued on and the bill of particulars filed in the case. The note was in the ordinary form, with a further provision as follows: "In case of legal proceedings to collect this note, I agree to pay 20 per cent. additional to the amount as attorney's fees." The court then held that the judgment was void because the amount exceeded the jurisdiction of the justice.
Defendants contend that it was error to admit the note and bill of particulars in evidence for the purpose of showing the *390
amount sued for exceeded the jurisdiction of the justice, and that, even if they were properly received, they do not show that the justice was without jurisdiction. They cite no authorities which hold it is error to permit the bill of particulars and note to be introduced in evidence, nor have any been found sustaining this view. Where a party relies upon a judgment, and introduces it in evidence, the opposite party may always inquire into the jurisdiction of the court to render it.Williamson v. Berry,
In Gibson v. Robinson,
"It will not, however, be conclusive either of jurisdiction of the parties, service, or of any other matter material to the rendition of a valid judgment; and of course, if the party against whom it is offered can derive any benefit from proving the antecedent or subsequent proceedings, or the want of any legal essential, he is still at liberty to introduce the entire record."
The justice was without jurisdiction of the case of Diehr v. Eckewaudauh. The bill of particulars showed on its face that the suit was upon a promissory note for $200 principal, and twenty per cent. attorney's fee, and asked that the attorney's fee be taxed as costs. The fact that the bill of particulars referred to the attorney's fee as costs, and asked that it be so taxed, did not change the essential nature of the suit. It was a suit upon a note which promised to pay $200 principal, and $40 attorney's fee, and in rendering judgment for the attorney *391 fee of $40 the justice was as much in the exercise of his judicial power as in rendering the judgment for the $200 principal, and the fact that the judgment referred to the attorney's fee as costs did not affect the question. The judgment was therefore void.
The Constitution of the state of Oklahoma, sec. 18, art. 7, is as follows:
"The office of justice of the peace is hereby created, and, until otherwise provided by law, courts of justices of the peace shall have, coextensive with the county, jurisdiction as examining and committing magistrates in all felony cases, and shall have jurisdiction, concurrent with the county court, in civil cases where the amount involved does not exceed two hundred dollars, exclusive of interest and costs."
De Jarnett v. Marquez,
In Waters v. Walker (Tex. App.) 17 S.W. 1085, it was held that the ten per cent. attorney fee stipulated for in the note must be considered in estimating the amount in controversy in determining the jurisdiction of the court, and though the principal of the note was within the jurisdiction of the court, if, with the attorney fee, the amount exceeded his jurisdiction, the justice court had no jurisdiction, and its judgment was void.
By the Constitution of the state of Georgia the jurisdiction of justices of the peace was limited to cases in which the principal sum did not exceed $100. In Almand v. Almand,
"The attorney's fees are not in any sense interest, nor are they any accretion upon the principal. The stipulation for their payment is a covenant, independent of principal or interest, and the mention of them is only incidental as a means of computing and estimating a sum which the defendant undertakes to pay in the event the plaintiff is forced to bring suit. The joinder of this demand with what is stated as technical principal makes the principal debt for the recovery of which this action is brought, exclusive of interest, exceed the sum of $100; and this it is that renders the judgment void."
To the same effect is Warder B. G. Co. v. Raymond,
"Although the attorney's fee specified and fixed by statute may be taxed as costs, an agreement to pay a fixed amount as attorney's fee, contained in a promissory note, becomes a part of the contract; and when such stipulated amount is claimed in a summons, and, together with the principal and interest, according to the terms of the instrument upon which suit is brought, exceeds $100, a justice of the peace is without jurisdiction of the subject-matter."
The case of Davis v. Jones,
The evidence shows that the note upon which judgment was obtained in the case of Diehr v. Eckewaudauh was given by Eckewaudauh to Morgan, and by Morgan transferred to Diehr without consideration for the purpose of enabling Morgan to collect attorney's fees upon the note. The result of this was necessarily unjust either to Eckewaudauh, or, if the judgment was good, to Eckewaudauh's other creditors. The justice of a decision which prevents the consummation of such a scheme must be apparent. *393
The judgment of the lower court should be affirmed.
By the Court: It is so ordered.