Gorham-Revere Rubber Co. v. Broadway Automobile Co.

• Decision Date: 21 January 1913
• Citation: 129 P. 89,71 Wash. 578
• Parties: GORHAM-REVERE RUBBER CO. v. BROADWAY AUTOMOBILE CO.
• Court: Washington Supreme Court

129 P. 89

71 Wash. 578

GORHAM-REVERE RUBBER CO. v. BROADWAY AUTOMOBILE CO.

Supreme Court of Washington

January 21, 1913

Department 2.Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by the Gorham-Revere Rubber Company against the Broadway Automobile Company.Judgment for defendant, and plaintiff appeals.Appeal dismissed.

Leopold M. Stern and J. W. Russell, both of Seattle, for appellant.

Hughes McMicken, Dovell & Ramsey and France & Helsell, all of Seattle, for respondent.

ELLIS J.

The plaintiff, a California corporation as successor in interest to Gorham Rubber Company, also a California corporation brought this action in February, 1911, to recover for goods sold to the defendant at an agreed price of $157.25.The complaint set up the plaintiff's incorporation, payment of its annual license fee, sale of the goods, and nonpayment therefor.The defendant by an amended answer put in issue the incorporation of the plaintiff and the payment of its license fee, denied the sale, denied failure to pay, and set up a counterclaim for $557.85.The counterclaim was put in issue by the reply.The cause came on for trial by the court without a jury on December 5, 1911.The plaintiff, being then unprepared to prove payment of the corporate license fee, was permitted to proceed with the trial, upon condition that it would procure and present a duplicate receipt for the necessary fee within two days.At the trial the defendant admitted the purchase of the goods and the failure to pay for the same.The plaintiff put in evidence a certificate of the filing of its articles of incorporation in the office of the Secretary of State in this state, and a certificate showing that it had appointed an agent in this state, and evidence that it had opened an office and was doing business in this state.Evidence was also taken as to defendant's counterclaim.The court found against the defendant upon its counterclaim, and ordered judgment in favor of the plaintiff for the amount demanded in its complaint.On December 18, 1911, the plaintiff offered in evidence a duplicate receipt for its corporation license fee for the fiscal year beginning July 1, 1911.This on objection was excluded, on the ground that it did not cover the fiscal year in which the action was begun.The plaintiff requested sufficient time to procure a duplicate receipt for the fiscal year beginning July 1, 1910.The request was denied and the action was dismissed.The plaintiff appeals.

The respondent moves to dismiss the appeal, on the ground that the amount in controversy does not exceed $200.It is, of course, admitted that, but for the respondent's counterclaim which exceeded $200 in amount, the motion would be well taken, since the amount sued for in the complaint was far short of $200.The appellant contends however, that the original amount in controversy was the amount of its claim plus the amount of the counterclaim.The exact question here presented has never been decided by this court.

In several caseswe have held that the original amount sued for and not the amount of the judgment recovered, determines the question of jurisdiction.Penter v. Staight,1 Wash. 365, 25 P. 469;Bleecker v. Satsop R. Co.,3 Wash. 77, 27 P. 1073;Trumbull v. School District,22 Wash. 631, 61 P. 714;Kirby v. Rainier-Grand Hotel Co.,28 Wash. 705, 69 P. 378.

We have also held that, upon an appeal by a defendanthe occupies substantially the position of a plaintiff appealing from an adverse judgment, and that the amount claimed by him in a counterclaim...