Barnes v. Metropolitan St. Ry. Co.

• Decision Date: 02 July 1906
• Citation: 119 Mo. App. 303,95 S.W. 971
• Parties: BARNES v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

95 S.W. 971

119 Mo. App. 303

BARNES v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

July 2, 1906.

1. COURTS—JURISDICTION—AMOUNT IN CONTROVERSY —ALLEGATIONS OF PETITION.

The amount claimed in the petition, and not the amount recovered, determines the jurisdiction of the court.

2. SAME—RETENTION OF JURISDICTION.

Where the jurisdiction of the circuit court has once attached, it will not be devested by the fact alone that plaintiff has failed to establish a part of his demands and has recovered on all of them a sum less than $50, and therefore within the exclusive jurisdiction of justices of the peace, within Rev. St. 1899, §§ 1674, 3836.

3. SAME.

A petition in an action in the circuit court contained two counts; the first setting forth an action within the jurisdiction of the court, and the second an action within the exclusive jurisdiction of a justice of the peace, under Rev. St. 1899, §§ 1674, 3836. Plaintiff at the trial introduced his evidence to support the first count, but was compelled to dismiss the same owing to adverse rulings of the trial court. Held, that the fact that he failed to establish the cause of action set forth in the first count did not of itself indicate bad faith in its prosecution and was without effect in determining the question of the jurisdiction of the court.

4. ACTION—JOINDER OF CAUSES OF ACTION— CONTRACT AND TORT.

Rev. St. 1899, § 593, authorizing a plaintiff to unite in the same petition several causes of action where they arise out of the same transaction, contract, injuries, etc., does not permit the joinder of an action in tort with one in contract.

5. PLEADING — PETITION — MISJOINDER OF CAUSES OF ACTION—WAIVER.

The objection that two causes of action are improperly united in one suit is waived, on defendant failing to demur to the petition or in any manner raise the question of misjoinder.

6. COURTS—JURISDICTION—AMOUNT IN CONTROVERSY.

Rev. St. 1899, § 3836, confers on justices of the peace original jurisdiction of actions for the recovery of money not exceeding $300. Section 1674 confers on the circuit court concurrent original jurisdiction in actions for the recovery of money exceeding $50. A petition in an action in the circuit court contained a count in tort for $10,000 damages and a second count in contract for less than $50. Defendant did not raise the question of misjoinder of causes of action. At the trial the first count was dismissed. Held, that the circuit court was without jurisdiction of the second count, and a judgment entered thereon was void.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by S. B. Barnes against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John H. Lucas and Frank G. Johnson, for appellant. J. G. Littick and Amos H. Kagy, for respondent.

JOHNSON, J.

The petition, when filed, contained two counts. An action in tort was pleaded in the first, and one on contract in the second. No demurrer was filed, but defendant answered to the merits. During the trial, plaintiff dismissed the cause of action stated in the first count. At the conclusion of all the evidence, defendant asked an instruction in the nature of a demurrer to the evidence, which was refused. Plaintiff recovered judgment on the second count in the sum of $26, the amount prayed for in the petition, and defendant appealed.

It is argued by defendant that the circuit court had no jurisdiction over the action stated in the second count, because the amount of the recovery sought therein was less then $50. The suit was brought in the circuit court of Jackson county, a county having over 50,000 inhabitants, and it is provided in Rev. St. 1899, § 3836, that in all such counties "justices of the peace shall have original jurisdiction of all actions and proceedings for the recovery of money * * * when the sum demanded exclusive of interest and costs does not exceed three hundred dollars." In the third subdivision of section 1674, Rev. St. 1899, it is provided that circuit courts shall have "concurrent original jurisdiction with justices of the peace in all counties and cities, in all civil actions for the recovery of money * * * when the sum demanded exclusive of interest and costs shall exceed fifty dollars." Had the suit, when brought, embraced no other cause of action than that pleaded in the second count, the judgment would be void for want of original jurisdiction in the circuit court over the subject-matter; the exclusive original jurisdiction of such actions being vested in justices of the peace. Bradley v. Asher, 65 Mo. App. 589; Bay v. Trusdell, 92 Mo. App. 377. In the first count the damages were laid at $10,000, and the important questions before us for solution relate to the effect of joining in one suit these two causes of action. It has been held in this state that, "where the aggregate amount claimed in all of the counts brought the cause within the jurisdiction of the court, it was sufficient to confer jurisdiction over the subject-matter," notwithstanding the amount claimed in each count was below the sum of $50. Smith v County of Clark, 54 Mo. 58; Fickle...