Batchelor v. Bess

• Decision Date: 31 January 1856
• Citation: 22 Mo. 402
• Parties: BATCHELOR, Respondent, v. BESS, Appellant.
• Court: Missouri Supreme Court

22 Mo. 402

BATCHELOR, Respondent,

v.BESS, Appellant.

Supreme Court of Missouri.

January Term, 1856.

1. Where the amount of damages claimed by the plaintiff in a suit before a justice is not expressly shown, the amount for which he accepts a judgment will be taken as the amount claimed; and although the plaintiff may in the justice's court enter a remittitur for the excess recovered beyond the justice's jurisdiction, he can not be permitted to do this in the circuit court on appeal, so as to give jurisdiction.

2. If, in order to authorize the supreme court to reverse a judgment, in a case commenced before a justice, for want of jurisdiction, it must appear that the question of jurisdiction was raised and passed upon in the circuit court; this is sufficiently shown by a motion for a review in which the objection is made, although a motion for a review is not applicable in such a case.

Appeal from Stoddard Circuit Court.

This was an action commenced before a justice of the peace on the following instrument of writing:

“On or before the 20th day of November, 1854, I promise to pay John Batchelor or order, two hundred and twenty-five bushels of merchandise, corn, to be delivered on the farm I have bo't of him; value rec'd, this the 19th day of January, 1853.

WM. H. BESS.”

At the trial, the defendant moved to dismiss the suit for want of jurisdiction. The justice overruled the motion, and gave judgment for the plaintiff for $112 50. The defendant appealed to the Circuit Court, where a trial by the court, without a jury, resulted in a judgment for the plaintiff for ninety dollars. The court filed a written decision, or finding of facts, which stated that the value of the corn, when it became due, was one hundred and twenty-three dollars and seventy-five cents, and that the plaintiff remitted $33 75.

The defendant filed a motion for a review, with reasons, one of which was, that the value of the corn sued for exceeded the justice's jurisdiction. The motion was overruled, and the defendant brought the case by appeal to this court.

J. W. Morrow, for appellant.

1. The remittitur in the Circuit Court could not aid the plaintiff. The justice had no jurisdiction, and consequently the Circuit Court could not have any. (R. C. 1845, p. 634-5.) 2. Justices of the peace have no jurisdiction in actions on notes exceeding ninety dollars, to be paid in property. (Martin v. Chauvin, 7 Mo. 277.)

Hardin, for respondent.

1. All errors of the justice were corrected by the judgment of the Circuit Court. (R. C. 1845, p. 670.) If the Circuit Court committed error, the case has not been saved properly. No instructions were asked, no evidence preserved, no exceptions saved; no motion for a new trial, nor any motion in arrest of judgment, &c. The record shows that there was a finding of the facts by the court, and a motion for a review of the judgment; but these were not necessary. (20 Mo. 453.) This finding was not authorized by law, and therefore no part of the record, and can not be used to show error in the judgment. (See the case of Harrison v. State, 10 Mo. 688.)

LEONARD, Judge, delivered the opinion of the court.

The claim of the plaintiff and the amount adjudged both exceeded a justice's jurisdiction; for, although the amount of...