« PreviousContinue »
Jurisdiction of these courts.
Amended 1849, 1851.
tions 59 to 66, of the same article, both inclusive, are repealed, and the provisions of this title substituted in place thereof. But this repeal shall not affect any action heretofore commenced in a court of a justice of the peace.
$ 53. [Sec. 46.] Justices of the peace shall have civil jurisdiction in the following actions, and no other:
1. An action arising on contract for the recovery of money only, if the sum claimed do not exceed one hundred dollars;
2. An action for damages for an injury to the person, or to real property, or for taking, detaining, or injuring personal property, if the damages claimed do not exceed one hundred dollars;
3. An action for a penalty not exceeding one hundred dollars.
4. An action commenced by attachment of property, as now provided by statute, if the debt or damages claimed do not exceed one hundred dollars ;
5. An action upon a bond, conditioned for the payment of money, not exceeding one hundred dollars, though the penalty exceed that sum, the judgment to be given for the sum actually due. Where the payments are to be made by instalments, an action may be brought for each instalment as it becomes due;
6. An action upon a surety bond taken by them, though the penalty or amount claimed exceed one hundred dol
7. An action on a judgment rendered in a court of a justice of the peace, or of a justices' or other inferior court in a city where such action is not prohibited by section
8. To take and enter judgment on the confession of a defendant where the amount confessed shall not exceed two hundred and fifty dollars, in the manner prescribed by article eight, title four, chapter two, of part three of the Revised Statutes;
9. An action for damages for fraud in the sale, purchase. or exchange of personal property if the damages claimed do not exceed one hundred dollars.
A justice of the peace has jurisdiction to try an action for wilfully neg. lecting or refusing to issue an execution on a judgment recovered before the defendant as a justice of the peace. Van Vleck vs. Burroughs and others, 6 Barb. 341.
Where an inferior court has once acquired jurisdiction, it will not lose it by subsequent error or irregularity. Hard vs. Shipman, 6 Barb. 621; Everitt vs. Lisk, 1 Code Rep. 71.
The summons should state the alleged cause of action. Ellis vs. Merrit, 2 Code Rep. 68.
The plaintiff must prove his demand; he cannot enter judgment on default of the defendant. Muscott vs. Miller, 1 Code Rep. 53; Smith vs. Falconer, 1 Code Rep. 120.
The 7th sub-division of this section controls the first subdivision. Miles vs. Winslow, 3 Code Rep. 44.
A justice of the peace had no power to take judgment by confession, for a sum greater than one hundred dollars, under the Code of 1848. Daniels and others agt. Hinkstone, 5 How. 322. § 54. [Sec. 48.) But no justice of the peace shall have Jurisdic
tion in civil cognizance of a civil action,
limited 1. In which the people of this state are a party, excepting for penalties not exceeding one hundred dollars;
2. Nor where the title to real property shall come in question, as provided by sections 55 to 62, both inclusive;
3. Nor of a civil action for an assault, battery, false imprisonment, libel, slander, malicious prosecution criminal conversation, or seduction;
4. Nor of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars ;
5. Nor of an action against an executor or administrator, as such.
Should the joint accounts exceed four hundred dollars, and the justice give judgment, it is not void for want of jurisdiction. Lamoure vs. Caryl, 4 Denio, 370.
$ 55. [Sec. 48.] In every action brought in a court of Answer of justice of the peace where the title to real property shall land.
come in question, the defendant may, either with or without other matter of defence, set forth in his answer, any matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his attorney, and delivered to the justice. The justice shall thereupon countersign the same, and deliver it to the plaintiff.
The answer cannot be amended in the supreme court in matters of substance. Wendell agt. Mitchell and others. 5 How. 424.
A reply is not necessary on the part of the plaintiff, and if put in may be stricken out. McNamara agt. Bitely, 4 How. 44; S. C., 2 Code Rep. 42.
$ 56. [Sec. 49] At the time of answering, the defendant king thero.
shall deliver to the justice a written undertaking, executed by Amended at least one sufficient surety, and approved by the justice to the
effect that if the plaintiff shall, within thirty days thereafter, deposite with the justice a summons and complaint in an action in the county court, for the same cause, the defendant will, within ten days after such deposite, give an admission in writing of the service thereof.
Where the defendant was arrested in the action before the justice, the undertaking shall further provide, that he will at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable, not exceeding one hundred dollars.
If the defendant omits, within the prescribed time, to admit service of the summons and complaint, the court cannot grant leave to admit service thereof. Davis agt. Jones, 4 How. 340; S. C., 3Code Rep. 63.
§ 57. [Sec. 50.] Upon the delivery of the undertaking to the discontin- justice, the action before him shall be discontinued, and each
party shall pay his own costs. The costs so paid by either party shall be allowed to him, if he recover costs in the action to be brought for the same cause in the county courts. If no such action be brought within thirty days after the delivery of the
Suit before justice to be
ings if un
tion in su
undertaking, the defendants costs before the justice may be recovered of the plaintiff
§. 58. [Sec. 51.] If the undertaking be not delivered to Proceedthe justice, he shall have jurisdiction of the cause, and dertaking shall proceed therein; and the defendant shall be precludo ed, in his defence, from drawing the title in question.
859. [Sec. 52.) If, however, it appear on the trial, from The same. the plaintiff's own showing, that the title to real property Amended is in question, and such title shall be disputed by the de- 1849. fendant, the justice shall dismiss the action, and render judgment against the plaintiff for the costs.
$ 60. When a suit before a justice shall be discontinued by New acthe delivery of an answer and undertaking, as provided in preme sections fifty-five, fifty-six and fifty-seven, the plaintiff may prosecute an action for the same cause, in the county court, 1849, 1851. and shall complain for the same cause of action only on which he relied before the justice; and the answer of the defendant therein. shall set up the same defence only which he made before the justice.
See notes to section fifty-five supra.
§ 61. [Sec. 53.] If the judgment in the county court be for Costs of acthe plaintiff, he shall recover costs; if it be for the defendant, he shall recover costs, except that upon a verdict he shall
pay costs to the plaintiff, unless the judge certify that the title to real property came in question on the trial.
$ 62. [Sec. 55.] If, in an action before a justice, the plaintiff Proceedhave several causes of action, to one of which the defence of title several to real property shall be interposed, and as to such cause, the defendant shall answer and deliver an undertaking, as pro-one. vided in sec'ions fifty-five and fifty-six, the justice shall dis- Amended continue the proceedings as to that cause, and the plaintiff may commence another action therefor in the county court. As to the other causes of action, the justice may continue his proceedings.
tion in supreme court.
of action and answer of title as to
Docketing § 63. [Sec. 56.] A justice of the peace, on the demand of justices' judgments
, a party in whose favor he shall have rendered a judgment,
shall give a transcript thereof, which may be filed and dockAmended eted in the office of the clerk of the county where the judg
ment was rendered. The time of the receipt of the transcript by the clerk shall be noted thereon and entered in the docket; and, from that time, the judgment shall be a judgment of the county court. A certified transcript of such judgment may be filed and docketed in the clerk's office of any other county, and with the like effect, in every respect, as in the county where the judgment was rendered; except that it shall be a lien, only from the time of filing and docketing the transcript. But no such judgment for a less sum than twenty-five dollars, exclusive of costs, hereafter docketed, shall be a lien upon, or enforced against real property.
The transcript must correspond with the judgment as respects the names and number of plaintiffs and defendants. Simpkins vs. Page, 1 Code Rep. 107.
$ 64. The following rules shall be observed in the courts justices'
of justices of the peace :
The plead, ing.
The pleadings in these courts are ;
Pleadings how putin.
The pleadings may be oral, or in writing; if oral the substance of them shall be entered by the justice in his docket; if in writing, they shall be filed by him, and a reference to them shall be made in the docket.
3. The complaint shall state, in a plain and direct manner, Complaint.
the facts constituting the cause of action.