2 S.D. 434 | S.D. | 1892
This is an appeal from a judgment of the late district court of Pennington county, in an action originally commenced before a justice of the peace. The action was commenced August 2, 1888, for a balance due upon an account for goods sold amounting to $86.50, and the demand for judgment is as follows: “Wherefore plaintiffs demand judgment for the sum of eighty-six and 50-100 dollars, together with interest since December 22, 1883, at 7 per cent per annum, with costs and attorney’s fees as provided by law.” The summons corresponded with the complaint, in which the defendant was notified that the plaintiffs ‘ ‘claim to recover of you the sum of eighty-six dollars and 50-100 for balance due' upon account, * * * and interest on said sum from said December 22, 1883, at 7 per cent per annum;” followed by the usual clause that, if the defendant failed to appear and answer, the plaintiffs would take judgment for $86.50, with interests, costs, and attorney’s fees. It will be observed the sum claimed, including interest, amounts to about $114. _The defendant appeared specially in
The question of whether interest is to be included or excluded in determining the meaning of the term “sum claimed,” was not, so far as we are advised, passed upon by the late territorial supreme court, and it has not been before the present state supreme court. It is therefore a new question, involving the construction of our statute conferring jurisdiction upon justices of the peace. The organic act which was in force when
It will thus be seen that the jurisdiction of the justice court is limited to $100 in actions upon contracts for the recovery of money only, and that exclusive jurisdiction is vested in the district courts in that class of actions where the sum claimed exceeds $100. . The jurisdiction of the justice is determined by the ‘‘sum claimed.” When, therefore, a party claims that there is due him upon a# contract a definite sum, and also interest upon that sum, which, with the principal sum claimed, amounts to a sum in excess of 100, we think the “sum claimed” exceeds the jurisdiction of the justice. The interest constitutes a part of the sum claimed. Take, for example, the case of a promissory note for $100, with interest at 12 per cent per annum. The interest is as much a part of the contract as the principal, for without such written contract a party could only recover 7 per cent per annum; and suppose, further, the interest had run for five years, would nob the amount claimed be $160, where the party claims his interest as well as his principal? Could it be said in such a case that the sum claimed does not exceed $100? He claims by virtue of his contract the $100 principal, and also by virtue of the contract $60 interest. Does the fact, therefore, that the plaintiffs in the case at bar claim $86.50, and interest at 7 per cent per annum from December 22, 1883, which
The case principally relied on by counsel for plaintiffs to sustain their position is Brantley v. Finch (N. C.) 1 S. E. Rep. 535. But the learned counsel must have overlooked the fact that in that case the plaintiff did not claim a sum in excess of the justice’s jurisdiction. The court in that case says: “We are of the opinion that the justice of the peace had jurisdiction. It is the sum demanded in the action or contract that determines the question in that respect. * * * The plaintiff did not demand by the summons nor insist on the trial that the intestate of defendant in his lifetime owed him a greater sum than $200, and the justice of the peace had jurisdiction of that sum.” In Barber v. Rose, 5 Hill, 76, cited by respondents, the court says: “There is no doubt of the plaintiff’s right, when the damages found in his favor exceed the amount claimed in his declaration, to remit the excess
Lastly, it is contended by the respondents’ counsel that, as there was no motion for a new trial or bill of exceptions, the errors complained of cannot be reviewed by this court. But this contention is not tenable for the reason that the want of jurisdiction in the justice court appears from the summons and complaint, which constitute a part of the judgment roll in the case. The motions to dismiss for want of jurisdiction, made in the justice and district courts, which were overruled, and exceptions taken, also became a part of the judgment roll. See Section 5103, Comp. Laws. The appeal from the judgment brings