Wells v. De Gouveia

• Decision Date: 05 February 1912
• Citation: 143 S.W. 517,161 Mo.App. 563
• Parties: ADDIE B. WELLS, Appellant, v. ALMA DE GOUVEIA and MAUD GORDON, Respondents
• Court: Kansas Court of Appeals

143 S.W. 517

161 Mo.App. 563

ADDIE B. WELLS, Appellant, v. ALMA DE GOUVEIA and MAUD GORDON, Respondents

Court of Appeals of Missouri, Kansas City

February 5, 1912

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

AFFIRMED.

James Fairweather and W. A. Taylor for appellant.

Metcalf Brady & Sherman for respondents.

OPINION

BROADDUS, P. J.

The plaintiff began her suit in a justice's court by filing a statement against the defendants, as tenants of certain premises, alleging that the tenancy was from week to week at a rental of $ 3.75, payable in advance; that the sum of $ 7.50 rent accrued and was due and unpaid to plaintiff although demand had been made and praying judgment for the amount and for possession of the premises.

Defendants filed a set-off consisting of a promissory note executed by plaintiff and payable to defendants in the sum of $ 450.00 bearing five per cent interest. The plaintiff filed a motion to dismiss the set-off assigning as a reason therefor that the amount thereof exceeded the jurisdiction of the justice of the peace.

The defendants by permission of the court were allowed to reduce their set-off $ 150 in order to bring the amount within the jurisdiction of the justice. Judgment was rendered for the plaintiff for possession of the premises and for $ 7.50, the amount for rent due, and after deducting this amount from defendants' set-off judgment was rendered for $ 295.80 in favor of defendants. Plaintiff appealed from the judgment to the circuit court of the county. In the circuit court the plaintiff's motion to dismiss defendants' counterclaim was again overruled.

The only question is, was the court authorized to permit the reduction of defendants' set-off so as to bring the claim within the jurisdiction of the justice? Where the plaintiff brought suit before a justice of the peace against defendant for killing his dog, and laid his damages at $ 1000, "on motion to dismiss for excess of claim, the plaintiff amended his statement so as to make his claim but $ 50, and went to trial." It was held that the amendment was proper. [Burden v. Hornsby, 50 Mo. 238.] In Denny v. Eckelkamp, 30 Mo. 140, the plaintiff was permitted to reduce his claim to within the limits prescribed for the jurisdiction of a justice. In Caldwell v. Fitzpatrick, 34 Mo. 276, the plaintiff was allowed to give the justice jurisdiction by entering a voluntary credit on his cause of action.

But we have other decisions of the Supreme Court which deny to the defendant the right in certain cases to give jurisdiction by crediting his demand with the amount of plaintiff's demand. "A party sued before a justice filed as an off-set an account...