20 W. Va. 464 | W. Va. | 1882
announced the opinion of the Court:
This action was commenced "before Wm. II. Caldwell, a justice of Ohio county, by summons issued May 10, 1878, in which it was stated that the plaintiffs, Todd & Smith, as partners, will claim against the defendant, Martin Gates, one hundred dollars “due on contract for transcript of foreign judgment.” With said justice the plaintiffs filed a hill of particulars, consisting of the transcript of a judgment rendered June 20, 1877, in Mill township, Tuscarawas county, State of Ohio, in favor of It. A. Allen against Martin Gates, by John Milone, a justice of said county and State, for one hundred and twenty-eight dollars and ninety-seven cents and five dollars and forty-five cents costs. Upon said transcript is an affidavit in which said Allen swears, on April 4, 1878, that no part of said judgment has been paid and that the same is due to him from said Martin Gates ; and there is, also, endorsed thereon an assignment, dated May 8, 1878, from said Allen to the plaintiffs, Todd & Smith. An attachment was issued and served on the Pittsburg, Cincinnati and St. Louis Railway Company, as garnishee, in Wheeling, Ohio county, on May 10, 1878. The defendant, Gates, appeared before said justice, Caldwell, and on his motion the action was transferred to the county court of said Ohio county, on
The pleas in writing tendered in this action by the defendant and rejected by the court, except as hereinafter stated, attempt to make the same defences and present the same questions that were attempted to be made by the pleas in writing tendered and rejected in the case of J. E. Stevens for, &c., v. Norris H. Brown, decided at the present term of this Court. For the reasons stated in the opinion of this Court
It is first insisted by the plaintiff'in error that the affidavit on which the attachment in this ease is founded, is insufficient. There are several objections taken to said affidavit’ but the only one I deem it necessary to notice is, that it does not state the nature of the plaintiff’s claim as required by the statute. The affidavit states that the claim, “is for transcript of foreign judgment.” In McCluny v. Jackson, 6 Gratt. 96, under a statute which required the plaintiff to state, in his attachment, the character of his claim, the court held that the statute did not require the plaintiff' to describe his claim with the precision of a declaration, nor was it necessary 'for him to state whether it was due by bond, note, account or otherwise. See, also, Haywood v. McCrory, 33 Ill. 459; Theirman v. Vahle, 32 Ind. 400; Sullivan v. Fugate, 1 Heis. 20; Klenk v. Schwalm, 19 Wis. 124.
Under these authorities it seems to me the affidavit is sufficient.
I shall next consider, together, the defendant’s motion to quash the attachment, his motion to quash the summons and complaint and, also, his plea to the jurisdiction of the justice.
It may be observed that the court of a justice is one of special limited jurisdiction, which acts by virtue of statutory power, and whose acts, to be valid, must be authorized by the statute. The O. & M. R. R. Co. v. Hanna, 16 Ind. 391; Pendleton v. Fowler, 6 Ark. 41.
Our statute provides that “the amount claimed” by the plaintiff' shall not exceed one hundred dollars. In this case the amount claimed by the plaintiff, in the summons, is one hundred dollars, “due on contract for transcript of foreign judgment.” This sum is within the amount for which the justice has jurisdiction. The summons in a justice’s court, as well as in courts of record proper, must be looked to in order to determine the plaintiff’s claim on the question of jurisdiction. Markin v. Jornigan, 3 Ind. 548; Stone v. Murphy, 2 Iowa, 35.
.But if it appears that the true demand of the plaintiff' has been reduced, by feigned credits or otherwise, so as to bring it within the jurisdiction of the justice, the action will be dismissed as comm nonjudice. Sands v. Delap, 2 Ill. (1 Scam.) 168; Swift v. Woods, 5 Blackf. 97.
The provision in the fourth section of the statute, which declares that, “when a balance is found in favor of a qiarty upon a hearing before the justice, exceeding the sum for which a justice is authorized to give judgment, such party may release the excess and take judgment for the residue,” refers to such cases as are mentioned in sections 36, 37, 38 and 39, where such excess arises out of sets-off or counterclaims filed by either party as provided in said sections, and
The pleadings in justice’s courts are prescribed by statute, and arc intended to be as simple and free from technicalities as a due regard to the rights of the litigants will permit. No provision is made for pleas in abatement as is the case in courts of record; and as a substitute for such pleas to the jurisdiction of the justice, it is provided in section 49, that the plaintiff’s action shall be dismissed at his costs “whenever it appears that the justice has not jurisdiction thereof.” This, obviously, means if it appears at any .time during the trial, by the evidence or otherwise, the action shall be dismissed. And as it is provided, by section 3 of the statute, that there need be no written pleadings in the county court in cases removed to that court under said section, it is clear that pleas in abatement need not be filed to the jurisdiction in that court in such cases; and, therefore, if it appears during the trial in such court that the justice would not have had jurisdiction if the action had been tried before him, the court shall dismiss the action. Latham v. Jones, 6 Ark. (1 Eng.) 371; Clarke v. Conn, 1 Munf. 160.
The jurisdiction is confined to that of the justice even after the removal — and the pleadings may be the same in the county court. If, therefore, in this case, it had appeared before the justice or on the trial in the county court, that the plaintiff’s claim, or amount sued on, was an entire sum, exceeding the jurisdiction of the justice, aiid that the plaintiff by feigned credits or otherwise had reduced it to an amount within the jurisdiction of the justice, or sued upon only a part of it, and it was not shown during the trial that such claim was subject to bona fide credits, sets-off or counterclaims, sufficient in amount to reduce it to a sum of which the justice has jurisdiction, the court should have dismissed the action as coram non jiuliee. Sands v. Delap, supra; Hansbrough v. Stinnell, 22 Gratt. 593.
The defendant’s pleas to the jurisdiction were, therefore, entirely unnecessary and improper in this ease and were properly rejected. And as the want of jurisdiction in the justice did not appear upon the summons, or the attachment
It is true the summons states that the plaintiff’s claim is due by foreign judgment, and the judgment filed appears to be for one hundred and twenty-eight dollars and ninety-seven cents, but as our statute does not require the evidence of the debt sued on to be made a part- of the summons, the said judgment could not be regarded as a part of the summons on a motion to quash. And even, if it could be held to be a part of the summons, still, as it may appear on the trial that it was subject, to credits or sets-off' which would reduce it within the amount claimed in the summons, the motion to quash was not the proper manner of taking an objection to the jurisdiction.
This action seems to have been tried by the court upon the plea of nil debit, without objection from either party. This was cei’tainly an improper plea, if the action was on the record of a judgment. "What evidence was introduced by the plaintiff' on the trial, or whether it appeared that there were no sets-off', credits or counterclaims against his judgment, cannot be determined by this Court, as no bill of exceptions was taken. In the absence of a bill of exceptions, making the evidence or facts proved a part of the record, this Court will presume that there were credits which reduced the plaintiff’s claim to the amount of one hundred dollars for which he brought his action, and that the judgment of the court was proper and right. Johnson v. Jennings, 10 Gratt. 1; Mann v. Bryant, 12 W. Va. 516; Shrewsbury v. Miller, 10 W. Va. 115.
The only remaining question in this action, which was not decided in Stevens v. Brown, infra. 450, is that which relates to the validity or invalidity of the assignment of the Ohio judgment by Allen, the plaintiff’ therein, to Todd & Smith the plaintiff's in this action. It is claimed by the plaintiff in error that said assignment is void and confers no title upon the plaintiff's ; because it was made by a citizen of the State of Ohio in violation of a statute of that State making it a misdemeanor to make such assignment. This assignment of error was made, I apprehend, under a mistake in
Por these reasons the judgment of the court below must be affirmed with costs and damages according to law.
Judgment Affirmed.