39 N.W.2d 899 | N.D. | 1949
This action was commenced in justice court. The plaintiff brought suit upon an account of $138.26 for materials and labor in the repairing of defendant's automobile. The defendant defaulted in justice court. Judgment was entered against him for the sum of $163.46 including interest and costs. In due time the defendant took an appeal to the district court demanding a new trial of said action. With his notice of appeal and undertaking he served and filed a proposed answer denying plaintiff's complaint except for certain admissions and making a counterclaim against the plaintiff for damages in the sum of $202.75 which defendant claims to have suffered to his automobile by the negligent manner of the plaintiff in making the alleged repairs on said automobile. No reply was made to this counterclaim.
The case came duly on for trial in the district court. The plaintiff offered evidence in support of his claim and rested. Thereupon the defendant made his opening statement. Plaintiff then moved to strike the counterclaim from defendant's answer on the ground that he was seeking relief beyond the jurisdiction of the justice court. The court granted this motion. Defendant then made an offer of proof to support his counterclaim, which was, on plaintiff's objection, denied. Defendant then offered proof in support of his answer and the case was submitted to a jury. A verdict was rendered in favor of the plaintiff upon which a judgment for $153.39 was ordered. From that judgment this appeal is taken.
On this appeal the main contention of the defendant and appellant is that the trial court committed error in striking out the counterclaim and denying defendant's offer of proof under that counterclaim.
The specific point raised is that the counterclaim was for an amount exceeding the $200.00 limitation of the jurisdiction of the *31 justice court. Sec. 33-0104 NDRC 1943. It is contended by the plaintiff and respondent that, since the justice court would not have had jurisdiction to consider the counterclaim the district court had no jurisdiction to do so.
The law governing the trial of appeals from justice court in district court where a new trial is demanded provides: "An action appealed from justice court shall be tried anew in the district court in the same manner as actions originally commenced therein." Sec. 33-1116 NDRC 1943.
This provision has been in our law in almost identical words since prior to statehood and this court has passed on some aspects of it.
In the case of Vidger v. Nolin,
It will be noticed that neither would the district court have had jurisdiction to entertain a counterclaim of the kind offered. This court goes on to say, however, that: "There are many decisions in courts of last resort to the effect that the appellate *32 court may amend the ad damnum clause of the complaint so far as to demand damages in excess of the amount that the justice of the peace had jurisdiction to determine, where the justice had jurisdiction of the action and subject matter determined by him."
This decision holds merely that the justice of the peace must have had jurisdiction of the subject matter and indicates that an amendment increasing the claim for damages in excess of the limit in justice court may be made in the district court.
This section of the law was next considered in the case of Erickson v. Elliott,
In that case the amendment changed the issues to be tried.
That the complaint or answer may be amended as far as the right and theory of the case is concerned is recognized in Burcell v. Goldstein,
In Bryan v. Miller,
And the court held that: "An appeal from a justice court to a district court for a new trial of the case in the district court does not involve solely an exercise of appellate jurisdiction by the district court. The appellate functions are at an end when the case has been transferred to the district court pursuant to the prescribed appellate procedure and brought within the jurisdiction of the district court for trial. The trial of the case anew by the district court does not involve the exercise of the appellate jurisdiction of the district court, but involves the exercise of the original jurisdiction vested in the court by the constitution to try and determine civil actions."
This court in Bryan v. Miller, supra, quotes with approval the Supreme Court of South Dakota in Mann v. Hvammen,
The last case in which this matter has been before the court *34
is Mielcarek v. Riska,
In Quinn v. Conklin,
The rules laid down in these decisions are that the justice court must have had jurisdiction of the subject matter, that on appeal to the district court and demand for a new trial the original jurisdiction of that court is invoked, that the pleadings can there be amended and that the case is there tried as a new case and according to the manner of trying cases in district court.
In applying these rules to the case at bar, it seems that in the matters for consideration on this appeal are whether or not the justice court had jurisdiction of the subject matter of the *35 action as it was brought in that court and the nature of the appeal.
The suit was brought on an account for an amount less than $200.00. The defendant defaulted. Clearly the justice court had jurisdiction of the subject matter of the action. The defendant by his appeal submitted to the jurisdiction of the district court. He asked for a new trial there and invoked the original jurisdiction of the district court, presented his defense and counterclaim which, while in excess of the jurisdiction of the justice court was within the jurisdiction of the district court. In reality there is no difference between his action in asking the larger amount in his counterclaim from that of asking to amend his ad damnum clause on appeal. No attempt was made by the plaintiff to strike the answer and counterclaim on the grounds that no leave had been obtained to file them. Instead the plaintiff proceeded with the trial of his case in district court. Only after that was the motion made to strike the counterclaim. The new trial had then started and the district court had jurisdiction both of the parties and of the subject matter of the action including the counterclaim as if the case had been originally commenced there. The motion to strike the counterclaim on the grounds that it exceeded the jurisdiction of the justice court should have been denied and the defendant allowed to proceed with the evidence in support thereof.
The plaintiff cites Sec 549, 35 CJ 828 which states that: "The weight of authority is to the effect that the demand cannot be increased beyond the justice's jurisdiction." and he claims that such has been the rule of practice in the state heretofore. The cases cited do not show that any such rule has been adopted by this court. Furthermore, there is much more reason and justice in adoption of the rule here laid down than in that contended for by the plaintiff. Judge Polley in Quinn v. Conklin, supra, who dissented in the case of Nann v. Hvammen, supra, on the ground that the rule of practice was being changed, states it well: "While this construction may be somewhat of an innovation of what has heretofore been recognized as the rule in such cases, still we believe it is supported by reason and is in line with the trend of enlightened court procedure; and it certainly has the *36 virtue of avoiding a multiplicity of suits, while it fully protects the rights of all parties concerned."
The Court has examined the other specifications of error alleged by defendant and appellant. Some of them are included in the objections already considered and none others are found to be prejudicial.
For the error in striking out the counterclaim and refusing to admit any evidence thereunder the judgment of the district court is reversed and the case remanded for further proceeding in accordance with law.
NUESSLE, C. J., and BURKE, MORRIS and CHRISTIANSON, JJ., concur.