Gregory v. Diggs

Temple, J. In this case a demurrer was interposed to the complaint, which having been sustained, the plaintiffs refused to amend. This appeal is taken from that judgment, as well as from an order refusing an injunction.

Appellant has very little to say in his points in regard to the demurrer, further than that it is not pretended that his complaint does not state a cause of action, and that the burden on that question is on the. demurring party. The respondent does not allude to the subject. Looking at the complaint and the demurrer, I see no valid point against the sufficiency of the complaint. The judgment upon the demurrer is, therefore, reversed.

The only question considered in the briefs has reference to the order refusing the injunction. It appears [199]that plaintiffs purchased from defendants certain potatoes, which were warranted to be merchantable and suitable and fit for the market in Denver. Plaintiffs paid the purchase price, except the sum of one hundred and thirty-two dollars. For this sum suit was brought against plaintiff in the justice court. Appellants appeared and answered, setting up a counterclaim for five hundred dollars damages for violation of the warranty. This plea was stricken out by the justice on the ground that he had no jurisdiction—the demand being for more than three hundred dollars.

Plaintiffs then brought this action in the superior court, and asked that the justice be enjoined from proceeding with the case pending before him, but that the entire matter may be litigated in the superior court.

In the complaint plaintiffs claim damages in the sum of five hundred and twenty-five dollars for the alleged .violation of the contract of sale, and if their right to an injunction is sustained, the effect will be to compel the plaintiff in the justice’s court to plead his demand in the superior court as a counterclaim and to permit the whole controversy to be there tried.

If plaintiffs are entitled to this remedy, it is solely upon the ground that under the peculiar circumstances of the case the jurisdiction of the justice court is too limited to afford them relief. They cannot be required to remit a portion of their demand to enable them to put in a counterclaim of which the justice has jurisdiction, and y, judgment entered in the justice court by default- or consent would probably be a bar to the suit for damages in the superior court.