Stevens v. Damon, 29 Vt. 521

Stevens v. Damon

29 Vt. 521 | Vt. | 1857

The opinion of the court was delivered by

Isham, J.

The judgment rendered in the suit commenced on the 17th of July, 1854, embraced that portion of the plaintiff’s account which accrued between July 13, 1853, and June, 1854. The whole of the defendant’s account was pleaded in offset and adjudicated in that action. This suit is mow brought to recover a previous account, which accrued in the years 1852 and 1853, but which was not presented or allowed in the former suit between these parties. The auditor has found that this account is reasonable and just, and that it has never been paid. It is insisted, that as both of these accounts existed at the time of the commencement of that suit, and exceed the sum of one hundred dollars, the justice had not jurisdiction of that case, that consequently those proceedings were coram non judice and void, and that the whole amount is now open for adjudication in this suit, the same as if that judgment had not been rendered. If the plaintiff’s account is to be so regarded, it is obvious that the debit side of the plaintiff’s book exceeds the sum of one hundred dollars, and the suit should have been commenced originally before the county court.

We apprehend, however, that no such effect can be given to *524those proceedings, and that the judgment rendered in that action must he regarded as a valid and binding judgment between these parties. A justice of the peace has jurisdiction of the action on book; the ad damnum in the writ did not exceed one hundred dollars, and the plaintiff’s account as presented to the justice was less than that sum. The justice, therefore, had jurisdiction of the parties and of the subject matter of the suit. The process was good on the face of it, and no objections to the jurisdiction of the court was taken on the trial of the case. This very question was determined in the case of Fargo v. Remington, 6 Vt. 134. It was held in that case upon substantially the same facts, that the judgment of the justice was valid, and that the proceedings were not rendered void by the plaintiff’s neglect to produce his entire account, though had it been produced it would have exceeded the sum of one hundred dollars, on which the court could properly have dismissed the suit. Ordinarily such a judgment will bar a subsequent suit on the account so omitted, as the plaintiff cannot divide his account and make it the subject of several actions. It is prima facie evidence that all the previous account was adjudicated and settled. But it has been held, that the judgment has no such effect, if the account omitted was not then due or payable, or if its omission was occasioned by mistake, or other sufficient reason; 25 Vt. 250; 6 Vt. 20. Those charges, therefore, which were adjudicated by the justice in that action, whether on the part of the plaintiff or defendant, and which went in to make the balance which was allowed, cannot be regarded as subsisting accounts, or open for adjudication in this action. Neither can we regard that judgment as affecting the plaintiff’s right to recover in this action. The present account was kept in the plaintiff’s book on another page, and in no way connected w'ith the account adjudicated by the justice. The plaintiff' supposed this account had been settled by the application of the defendant’s account, but which has since been allowed to him in that action, and which the plaintiff has been compelled to satisfy. There was no fraud or advantage designed or obtained in withholding that account, and as the plaintiff has been deprived of that satisfaction of this account which he supposed existed, it is reasonable that he should recover its amount in this action. The reason is sufficient for not presenting *525the account on that trial. The court had jurisdiction of this case, and we think the plaintiff is entitled to his judgment.

The defendant’s account was properly disallowed-. The auditor has found that the charges were all adjudicated in the former suit, except the second item, which is for the balance due on note. The proper remedy for the party on that matter is on the note itself.

The judgment' of the county court is affirmed.