Greenbaum v. Martinez

California Supreme Court Nov 26, 1890 No. No. 12678Published

Before: Gibson

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Holding. The court held that the superior court had subject-matter jurisdiction because the ad damnum clause, which included damages for the pursuit of property, exceeded the jurisdictional threshold, and that title to the wheat had passed to the respondent prior to the attachment levy.

Issues

Whether the superior court had subject-matter jurisdiction when the total damages claimed exceeded the jurisdictional minimum, even if the value of the property alone did not.
Whether the allegation of attorney's fees could be treated as surplusage to sustain jurisdiction for money expended in pursuit of property.
Whether title to the wheat passed to the respondent under Civil Code section 1140 prior to the constable's attachment levy.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the ad damnum clause of the complaint amount to $362.84; and that clause, according to the settled rule in this state, constitutes the test of jurisdiction.”

“The court below was therefore justified in finding that the title to the wheat had passed to the respondent prior to the attachment levy.”

Synopsis

Jurisdiction of Superior Court — Trover — Pleading'—Ad Damnum Clause of Complaint •— Items of Damage. — The ad damnum clause of a complaint in an action for damages constitutes the test of jurisdiction; and where the whole amount of unliquidated damages, exclusive of interest, claimed in a complaint for the wrongful conversion of wheat equals or exceeds three hundred dollars, the superior court has jurisdiction of the action, although the value of the wheat converted, and the money expended in pursuit of it, separately considered, do not either of them equal the jurisdictional sum.

Id.—Damages for Conversion of Property—Attorney’s Fees—Construction of Pleading — Surplusage. — In an action for the wrongful conversion of personal property, where the plaintiff seeks to recover the sum of §262.84, alleged to be the value of the property converted, and also the further sum of §100, alleged to have been expended for attorney’s fees in the pursuit of the property, although money paid out for attorney’s fees may not be within the rule of damages declared in section 3336 of the Civil Code, yet the words “ attorney’s fees ” may be treated as surplusage, leaving an allegation of the expenditure of the stated amount in pursuit of the property, which, together with the value of the property, would bring the whole sum demanded within the sum required to give the superior court jurisdiction.

Id. —Recovery of Less than Jurisdictional Sum — Costs. —When the amount claimed in the complaint is sufficient to confer jurisdiction, the fact that the recovery is for less than the jurisdictional sum cannot affect the question of jurisdiction, but can only affect the recovery of costs.

Sale — Passing Title —• Identification — Segregation. — Under section 1140 of the Civil Code, the title to personal property sold or exchanged passes to the buyer whenever the parties agree to a present transfer, and the thing itself is identified, whether it is separated from other things or not.

Id. — Sale of Wheat — Delivery at Warehouse — Certificate of Weight — Attachment. •—When a bill of sale was given of a definite number of sacks of wheat, which were to be paid for at so much per cental, and a portion of them were then in a warehouse, for which certificates of weight had been issued to the seller, and which were then transferred to the buyer, and it was agreed that the remainder of the wheat should be delivered at the same warehouse for the buyer, and should be paid for when the buyer was notified of its exact weight, it sufficiently appears that the parties intended a transfer of the whole number of sacks of wheat at the time of the sale, which were then sufficiently identified, and the remainder of the wheat cannot be attached as the property of the seller, after being delivered at the warehouse and weighed, though certificates of weight were issued in the name of the seller, and were not transferred to the buyer until after the attachment.

Gibson, C. Action against defendant Martinez as constable, and the sureties on his official bond, to recover, as damages, the sum of $262.84, the value of 160 sacks of wheat, alleged to have been wrongfully taken and converted by Martinez, as constable, under a writ of attachment issued in an action prosecuted in a court of a justice of the peace, and, also, the further sum of $100, alleged to have been expended for an attorney’s fee in the pursuit of the wheat. Trial was had before the court without a jury, and resulted in certain findings, — among others, that the wheat was taken as alleged, and was of the value of $256.08, and that plaintiff had not properly expended the sum demanded by him for an attorney’s fee. Judgment was entered in accordance with the findings. Defendants appeal from the judgment, and from an order denying their motion for a new trial. There is no brief for the respondent on file.

The first error appellants assign is, that the court erred in overruling their demurrer to the complaint, in which they attacked the jurisdiction of the court over the subject-matter of the action, on the ground that the value of the property sought to be recovered was below the jurisdictional sum of three hundred dollars, and could not be brought up to or above the latter sum -by tacking on a demand for an attorney’s fee. The complaint plainly discloses that the object of the action is to recover damages for the wrongful conversion of the wheat, which damages are alleged to consist of two elements, [461]namely, the value of the wheat and money expended in pursuit of it. In order to give the superior court jurisdiction of the subject-matter of an action of this kind for unliquidated damages, the demand, exclusive of interest, that may be claimed under section 3336 of the Civil Code must amount to at least three hundred dollars. (Const. Cal., art. 6, sec. 5; Code Civ. Proc., sec. 76, subd. 3.)

It is therefore true, as urged by appellants, that the amount claimed here, to the extent of the value of the "wheat alone, would not give the superior court jurisdiction, but to this is added the sum of one hundred dollars expended in pursuit of the property, as an additional cause of damages, thereby making the whole sum claimed in the ad damnum clause of the complaint amount to $362.84; and that clause, according to the settled rule in this state, constitutes the test of jurisdiction. (Dashiell v. Slingerland, 60 Cal. 653; Bailey v. Sloan, 65 Cal. 387; Lord v. Goldberg, 81 Cal. 599.)

It may be said that the true amount of the demand, exclusive of interest, if any, may sometimes be increased in a complaint for the purpose of bringing the case within the jurisdiction of the superior court. While this may occur, yet the inevitable consequence of not being able to recover the jurisdictional sum, so as to carry costs under section 1022 of the Code of Civil Procedure, will, we apprehend, be sufficient to prevent such a practice from becoming common; and the saving of costs will compensate the defendants in the rare instances in which they may be first brought into the superior instead of the justice’s court.

Greenbaum v. Martinez

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