Webb v. Tweedie

Ewing, Judge,

delivered the opinion of the court.

The plaintiff sued Tweedie and another before a justice of the peace on an account, claiming ninety dollars as the value of a bull killed by the defendant; to which was appended a statement to the effect that the plaintiff waived the wrong and sued in assumpsit. There was a judgment for the plaintiff for the sum claimed, from which Tweedie took an appeal to the circuit court. On a trial in the circuit court, after evidence had been given tending to prove that the defendants killed the bull, and that his value was seventy-five dollars, the defendants filed a motion to dismiss said suit for want of jurisdiction in the justice, which was overruled. Thereupon the plaintiff was permitted to amend the account by changing the sum claimed from ninety dollars to fifty dollars. Exceptions were saved by the defendants to the rulings of the court. There was a verdict against William Tweedie for fifty dollars; and motions by the defendant for a new trial and in arrest of judgment being overruled, he brings the cause to this court by writ of error.

A justice of the peace has original jurisdiction over actions for injuries to persons or to real or personal property wherein the damages claimed shall not exceed twenty dollars; and concurrent jurisdiction with the circuit court in such actions wherein the damages claimed shall exceed twenty and not exceed fifty dollars. This was an action for injuries to personal property; and the nature or cause of action, (which now characterises the classification as to jurisdiction,) can not be changed by giving it an obsolete name. Mere nominal distinctions between actions no longer exist, such as trespass, assumpsit, &c.; and the jurisdiction of the justice of the peace is not defined by employing any such terms or distinctions; hence what is said about waiving the trespass and suing in assumpsit is without force.

The failure of the defendants to make their objections before the justice, on the ground of want of jurisdiction, did not preclude them from raising the objection for the first *491 time in tlie circuit court. The only restriction in this respect is that a set-off, not relied on before the justice, shall not be used in the circuit court on appeal. ( 11 Mo. 217 .)

The appellant insists that the amendment was allowable under the statute authorizing a justice in open court in furtherance of justice and on such'terms as may be proper to amend, on motion of either party, any statement, account, set-off, summons, writ, or. other proceeding, &c. (R. C. 1865, p. 946.) By another provision, however, it is declared that the same cause of action, and no other, is to be tried in the circuit court that was tried in the court below. (R. C. 1855, p. 975.) The justice haying no jurisdiction over the action as presented in that court, there was of course no cause of action that could have boen properly or legally tried by the justice, and the circuit court could not acquire any jurisdiction or lawful authority over the case by appeal. We can not so interpret the section above quoted on the subject of amendments, as to authorize a party, by so changing his account or statement, to malee a different cause of action, or to substitute a new one in the circuit court.

Judgment reversed;

Judge Napton concurring. Judge Scott absent.