Tracy v. Sumida

SHAW, J.

This action was commenced in the justice’s court to recover a balance of $171.80, alleged to be due plaintiff from defendant for wood furnished by plaintiff to defendant under a contract so to do. Defendant answered, denying all the allegations of the complaint, and also filed a cross-complaint wherein he asked judgment against plaintiff. The case was tried by the justice, who gave defendant a judgment for $6.85 and costs, from which the plaintiff appealed to the superior court. After perfecting the appeal plaintiff, by leave of court, filed an amended complaint in said action wherein the cause of action based upon the contract was stated in the sum of $990.40, for which he asked judgment. Defendant demurred to this amended complaint upon the ground, among others, that the court had no jurisdiction of the action set out in said amended complaint. The demurrer was overruled ; whereupon defendant filed his answer, consisting of a general denial, and a cross-complaint upon which he asked for judgment against plaintiff in the sum of $842.45. Trial was had by a jury which rendered a verdict in favor of plaintiff for $150, and from the judgment entered thereon defendant prosecutes this appeal.

Clearly, the action as brought, since it was upon a contract to recover a sum of money less than three hundred dollars (Code Civ. Proc., sec. 112), was one over which the superior court had no jurisdiction, except upon appeal. The effect of the amendment made in the superior court was to convert the action into one over which the justice’s court had no jurisdiction; hence the case was one over which the superior court could not, by virtue of its appellate powers, derive jurisdiction by the procedure of an appeal. In

Heath

v.

Robinson,

75 Vt. 133, [53 Atl. 995], it is said: “An amendment which, had it been made before the justice, would have ousted that court of its jurisdiction, . . . must consequently oust the county court of its appellate jurisdiction upon the same condition.” To the effect that where jurisdiction of an action is derived from a justice’s court on appeal from a judgment rendered therein the superior court may not, by permitting an amendment of the complaint, acquire jurisdiction in excess

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