Ramer v. Smith

• Decision Date: 26 March 1894
• Citation: Ramer v. Smith, 4 Colo. App. 434, 36 P. 302 (Colo. App. 1894)
• Parties: RAMER v. SMITH et al.
• Court: Colorado Court of Appeals

36 P. 302

4 Colo.App. 434

RAMER v. SMITH et al.

Court of Appeals of Colorado

March 26, 1894

Error to Larimer county court.

Action by Rachel V. Ramer against L.A. Smith and A.G. Smith. Defendants obtained judgment. Plaintiff brings error. Reversed.

Robinson & Love, for plaintiff in error.

Bailey & Garbutt and F.J. Annis, for defendants in error.

BISSELL P.J.

A writ of error was sued out to reverse a judgment of the county court of Larimer county dismissing the plaintiff's action. The judgment was put on the ground that the justice had no jurisdiction to entertain and try the suit, and the matters supposed to sustain the conclusion were for the first time exhibited in the court to which the cause had been appealed. The suit was on a note for $100, and the amount claimed was within the statutory limit of the justice's jurisdiction. The defendants made no appearance, otherwise than to preserve their right to appeal gave the statutory bond, and took the case to the county court. When it got there, the defendants attempted to divest the jurisdiction of the county court by asserting a set-off or counterclaim in excess of anything which could have been set up while the cause was pending before the justice. It is exceedingly doubtful whether what the defendants did in this direction would, under any circumstances, amount to a plea of set-off or counterclaim, since it was not matter suggested by way of answer. The defendants filed the following affidavit "That defendants, made, executed, and delivered their certain ten promissory notes to plaintiff, for the aggregate sum of one thousand dollars, as a part of the purchase price of the furnishing and appliances of the certain hotel situate in the city of Ft. Collins, in the county of Larimer and state of Colorado, known as the 'Tedmon House,' and certain credits connected therewith. That the consideration of said notes has wholly failed in this: That the said plaintiff was not the owner of the property sold by her to these defendants, and that the value of the property sold by plaintiff to defendant, to which she had no title, is of the value of one thousand dollars, and that defendants have, as affiant verily believes, a just and valid counterclaim and set-off against plaintiff, in the sum of one thousand dollars, or thereabouts. That the amount in controversy in this action exceeds the sum of three hundred dollars." On this affidavit a motion was made to dismiss the suit.

The case might be disposed of on the hypothesis that the affidavit does not present an issue which the defendants had a right to tender in the court where the case was brought. There is no known way by which when one is sued on a claim of which a justice has jurisdiction, and he is possessed of a right of action against the plaintiff for a sum largely beyond the statutory limit, he may interpose this counterclaim for the purposes of defeating the plaintiff's right to sue in that forum, and compel him to resort to some other tribunal for the adjustment of that difference. Of course, the defendant is not without a remedy; and if the plaintiff be insolvent, or recover a judgment, it would be a very easy matter to compel him to await the disposition of a suit which the other might bring for the collection of the larger debt. But this inquiry is foreign to the present case. The statute prescribing the jurisdiction of the justice, and conferring the right of appeal on the defeated party, is very plain and specific. It is universally true, in all jurisdictions, that the plaintiff may only initiate in the justice's court a suit clearly within this defined limit. It seems tolerably clear that the defendant, in resisting the recovery,--unless it be under very special circumstances, where the matter relates to a claim of title to property,--is limited, in his right of counterclaim or set-off, to the assertion of a right which shall likewise be within the jurisdiction of the justice. It is possible that if a set-off be larger, but is simply invoked for the purpose of defeating the plaintiff's claim, it may be asserted for that purpose, though what the effect would be as to the excess for which he might have obtained an affirmative judgment in some other court, had the suit been brought there, need not be examined. These questions have been...