Barruel v. Irwin
| Decision Date | 21 January 1882 |
| Citation | 2 N.M. 223,1882 NMSC 007 |
| Parties | HENRY BARRUEL, Appellee, v. WILLIAM K. IRWIN, Appellant. |
| Court | New Mexico Supreme Court |
Appeal from the District Court of Colfax county, PRINCE, J.
This is an action of replevin brought before FRANCIS MAYLAND, a justice of the peace, in precinct No. 2, Colfax county, on the fourth day of June, 1881, by Henry Barruel, plaintiff below, against William H. Irwin, defendant below, for the recovery of a gray mare.
Plaintiff's action was based upon an affidavit made by him, that he had " good right to the possession of the following described goods and chattels, and that the same were wrongfully detained by the said William K. Irwin, one gray mare." Upon such affidavit, the justice issued his writ of replevin, the property was replevied, a trial had and a verdict and judgment rendered in favor of plaintiff, from which defendant appealed to the district court for Colfax county.
Afterwards at the August term, A. D. 1881, of said court held in said county, the defendant filed his motion to quash the writ, and dismiss said cause and alleged and set forth the following reasons therefor:
First. It does not appear from the affidavit or otherwise, that the justice had jurisdiction to try said cause.
Second. No affidavit as required by law was filed by the plaintiff to authorize the issuance of the writ.
Third. The affidavit filed in said cause does not state the value of the property claimed.
Fourth. The affidavit filed does not contain any sufficient description of the property claimed.
Which motion was by the court denied, to which defendant then and there excepted.
The cause was thereupon tried by a jury in said court, and a verdict returned in favor of the plaintiff, upon which verdict the court rendered judgment for plaintiff. Defendant, by his counsel, then entered motions to arrest judgment, and for a new trial, which were denied.
He therefore brings this cause here by appeal, and relies upon the following grounds for a reversal of the judgment of the court below. viz.:
First. It does not appear from the affidavit or otherwise, that the justice of the peace had jurisdiction to try said cause.
Second. No affidavit, as required by law, was filed by the plaintiff to authorize the issuance of the writ.
Third. The affidavit filed in said cause, does not state the value of the property claimed.
Fourth. The affidavit filed does not contain any sufficient description of the property claimed.
Frank Springer and Catron & Thornton, for appellant.
As to the first ground of exception, it is absolutely necessary that the affidavit in an action of replevin before a justice of the peace, should set forth such a statement of facts as will clearly confer jurisdiction. Justice's courts are courts of special, limited and inferior jurisdiction, and their authority is derived wholly from the statutes, and must be strictly pursued: Matlock v. Strange , 8 Ind. 57; Evans v. Pierce , 3 Ill. (2 Scam.), 468; Pendleton v. Fowler , 6 Ark. 41; Reeves v. Clark , 5 Ark. 27; Martin v. Fales , 18 Me. 23; Levy v. Sherman , 6 Ark. 182; Everett v. Clements & Thompson , 9 Ark. 478; Williams v. Bower , 26 Mo. 601; Butler et al v. Wilson , 10 Ark. 313; Van Bibber v. Van Bibber , 10 Humph. 53.
As to the second ground of exception, the statute has clearly set forth what the affidavit in replevin before a justice of the peace shall contain (Prince's General Laws of New Mexico, page 95, sec. 50), and without such specific compliance with the statute, the justice has no authority to issue his writ or to proceed in any other respect in the cause. In such a proceeding he derives jurisdiction, if at all, wholly from the affidavit which is the foundation of the suit.
The jurisdiction of a justice of the peace must appear from the records of the proceedings and will not be presumed: Reeves v. Clark , 5 Ark. 27; Jolley v. Foltz , 34 Cal. 321; Trader v. Kee , 2 Ill. (1 Scam.), 558; Straughan v. Inge , 5 Ind. 157; State v. Hartwell , 35 Me. 129; Lane v. Crosby , 42 Me. 327; State v. Hall , 49 Me. 412; Bridge v. Ford , 4 Mass. 541.
As to the third ground of exception, an allegation of the value of the property is necessary to give jurisdiction to the justice. The language of the statute not only is positive, but prohibitory. It declares that no writ of replevin shall issue, unless the plaintiff, etc., shall file an affidavit with the justice, stating, etc., and stating the value of the property, and every writ of replevin issued without such affidavit shall be quashed: General Laws N. M., p. 95, sec. 50.
There is nothing in the form prescribed in the justice of the peace act in conflict with this, or which in any manner supersedes the necessity of stating value. In construing two statutes relating to the same subject, that which is positive and certain must prevail: In the matter of Watts, 1 New Mexico, 541; Potter's Dwarris on Statutes, etc., 110, 154 and 155.
As to the fourth ground of exception, the description, " one gray mare," is too vague and indefinite. The property should be described with such particularity that a judgment in the case could be pleaded in bar in another action.
Furthermore, the value is part of the description, just as material and essential as any other; the purpose of a description is to enable the court to act in the case, to determine the propriety of the remedy sought, its jurisdiction to try, and its capacity to render a judgment. If the description fails to furnish the court with this information, it is fatally defective.
In this respect the affidavit does not comply with the form prescribed, which requires that it shall describe the goods and chattels.
Jurisdiction of courts of limited jurisdiction must appear from the record: 8 Peters 444.
If legislature prescribes a rule, although it may be technical, the court is bound by it: 7 Wall. 310, 311.
Appearance does not waive want of jurisdiction of the subject matter: United States v. Yates , 6 How. 608; 29 Conn. 417; 30 Ala. 602.
Breeden & Waldo, for appellee.
The affidavit for replevin was sufficient, as it literally followed the form prescribed by the statute: Prince's Statutes, sec. 124, page 109; Prince's Statutes, Form, page 113.
The description of the property was sufficient, as it appears that the officer who held the writ was able to find and did find the property sought to be replevied.
A description in replevin need only to be sufficient to enable the officer to find the property and execute the writ: Hill v. Robinson , 16 Ark. 90; Stevens v. Osman , 1 Mich. 92; Farwell v. Fox , 18 Mich. 166.
The defendant's objection to the affidavit came after he had appeared and pleaded and after a trial upon the merits.
It was, therefore, too late: Brown v. Keller , 32 Ill. 151.
A motion based upon irregularity in issuing the writs, or insufficiencies in the affidavit, comes too late after pleading to the merits. Such irregularities and insufficiencies are waived by pleading to the merits, and cured by verdict: Frink v. Flanagan , 6 Ill. 35; Smith v. Emmerson , 16 Ind. 355; Bales v. Scott , 26 Ind. 202.
The affidavit and writ in this case, if defective, were amendable: Jacques v. Sanderson , 8 Cush. 271; Frink v. Flanagan , 6 Ill. 35; Perkins v. Smith , 4 Blackford, 299; 8 Hump. (Tenn.), 697; Prince's Statutes, 119.
If the affidavit was amendable, insufficiencies and defects therein were cured by verdict: Haverhill v. Cronin , 4 Allen (Mass.), 141; Robinson v. English , 34 Pa. State, 324; Bean v. Mitchell , 13 Mich. 207; Lane v. Maine M. F. Ins. Co. , 12 Me. 44.
The defendant's motion to quash in the district court was in effect a demurrer, and the objection was waived by pleading over: United States v. Boyd , 5 Howard, 29; Walkins v. United States , 9 Wall. 762; Beall v. Terty , 1 New Mex., 513.
The defendant had two trials on the merits and two verdicts against him. Substantial justice having been done, the court should not disturb the judgment: Dawson v. Wisner , 11 Iowa 36; Karney v. Paisley , 13 Iowa 89-94; 46 Ill. 112; 47 Ill. 178; 5 Ohio 109; 1 Peters 183; 1 Ohio 355.
This is an action of replevin originally before a justice of the peace of Colfax county, in the first judicial district, by Henry Barruel, for the recovery of the possession of a domestic animal described as a " gray mare," and for damages.
The case was tried before the justice by a jury, who rendered a verdict in favor of the appellee and against William K. Irwin, the appellant, on the main issue and for damages in the sum of five dollars.
It does not appear from the record that any formal judgment was entered by the justice on this verdict, and perhaps none was necessary for the purpose of an appeal to the district court.
The case was appealed on behalf of the appellant to the district court for that county. A trial de novo was held in that court before a jury, who rendered a verdict of guilty against the appellant. No value of the property replevied or damages seem to have been assessed by the jury.
The only judgment rendered by the court below was that the appellee (plaintiff below), Henry Barruel, " have and retain possession of the property heretofore replevied herein, and also that he recover of the said defendant (appellant here), William K. Irwin, his costs in this behalf expended as well as in the court below (justice's court) as in this court (the district court below) taxed at $38.60, and that he have execution therefor." The case is here by appeal from that judgment.
The affidavit for the writ of replevin made before the justice, and on which the case was originally tried before him and on which a trial de novo in the court below was had, is as follows:
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