State ex rel. Ryan v. Emmerling
Decision Date | 11 April 1882 |
Citation | 12 Mo.App. 98 |
Parties | STATE OF MISSOURI, TO THE USE OF M. RYAN, Plaintiff in Error, v. W. EMMERLING ET AL., Defendants in Error. |
Court | Missouri Court of Appeals |
Section 2835 of the Revised Statutes does not authorize an action before a justice of the peace on a bond with a collateral condition the penalty of which is in excess of the justice's jurisdiction.
ERROR to the circuit court of St. Louis County, EDWARDS, J.
Affirmed.
M. F. TAYLOR, for the plaintiff in error.
HENRY R. WATSON, for the defendants in error.
This was an action commenced before a justice of the peace to recover $125 from the defendant Emmerling, as principal, and the defendants Butz and Evans, as sureties, in the official bond of Emmerling as road overseer.
The penalty of the bond was $1,000. The justice of the peace rendered judgment in favor of the defendants for costs. The plaintiff appealed to the circuit court, and the circuit court dismissed the appeal.
Justices of the peace in this state have jurisdiction in civil cases “when the sum demanded, exclusive of interest and costs, does not exceed $150.” Rev. Stats., sect. 2835. In a suit on a bond with a collateral condition, the sum demanded is the full amount of the penalty of the bond; the judgment is for this amount, but with a further judgment, that the plaintiff have execution for the damages assessed. Rev. Stats., sects. 570, 571. The judgment remains a security for any damages that may be thereafter sustained by a further breach of the bond, which damages are recovered by scire facias. Rev. Stats., sects. 573, 574. In a suit on such a bond, it is error to render judgment merely for the amount of damages sustained. The State to use v. Fitzpatrick, 64 Mo. 185. It follows, that a justice of the peace has no jurisdiction of an action upon such a bond, the penalty of which is more than $150. Pitman v. Dwyer, 8 Mo. App. 570. The language used in section 2835 of the Revised Statutes, defining the jurisdiction of justices of the peace in civil cases, is different from the language employed in the statute prior to 1879, under which the decision in this case, and in other cases laying down the same rule, was rendered. By the former statute, the justice had jurisdiction “when the debt or balance due or damages claimed, exclusive of interest and costs,” did not exceed $90. 2 Wag. Stats. 807, sect. 2. It will be perceived that the present statute, instead of using the words ...
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State v. Harris
...99; State ex rel. Gates v. Fitzpatrick, 64 Mo. 185; State ex rel. v. Cooper, 79 Mo., loc. cit. 467. There is language in State ex rel. v. Emmerling, 12 Mo. App. 98, and State ex rel. Yeatman v. Fox, 15 Mo., loc. cit. 73, which might indicate that the penalty of the bond determines jurisdict......
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Barry County ex rel. Woolsey v. Sherman
...the peace; but this was because the jurisdiction of the justice depended on the amount of the penalty provided in the bond (State to use v. Emmerling, 12 Mo.App. 98; Id. v. Brooke, 29 Mo.App. 286) and want jurisdiction over the subject-matter may be taken advantage of at any stage of the ca......
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Barry County v. Sherman
...but this was because the jurisdiction of the justice depended on the amount of the penalty provided in the bond (State, to Use, v. Emmerling, 12 Mo. App. 98; State v. Brooke, 29 Mo. App. 286), and want of jurisdiction over the subject-matter may be taken advantage of at any stage of a The o......