Mosher v. Bellas

ROSS, C. J. — This action was brought by A. J. Bellas against Hattie L. Mosher individually and as surviving partner of the City Ice Delivery Company, a copartnership, and the City Ice Delivery Company, a corporation, to collect his wages, and the wages of fourteen other employees, for work and labor from *150 the 1st to the 13th of January, 1926, aggregating the sum of $704.55. None of the claims amounts to as much as $200, and the fourteen claims were assigned to plaintiff for economic reasons and convenience of collection. The complaint contains two counts, the first being for plaintiff’s individual wages, and the second for the assigned wages of the fourteen other employees. Besides a general denial, defendants demurred on various grounds: (1) That the plaintiff was without legal capacity to sue; (2) that there was a defect of parties plaintiff and defendant; (3) that several causes of action were improperly united; and (4) that the facts stated were not sufficient to constituté a cause of action. The demurrers were overruled, and, upon a trial before the court, judgment was rendered in favor of plaintiff against Mosher • individually and as surviving partner of the City Ice Delivery Company, a copartnership, for the whole amount sued for, the defendant corporation having been dismissed. We think it is obvious that none of the grounds of demurrer were good. Each of the assigned claims for wages constituted a separate cause of action and should have been so set out in the complaint. They were not, however, improperly united in one count. They were of the same character and capable of the same relief. If defendants desired to have these causes separately stated, their remedy was a motion and not demurrer. City Carpet Beating etc. Works v. Jones, 102 Cal. 506, 36 Pac. 841; Beckman v. Waters, 3 Cal. App. 734, 86 Pac. 997; Galvin v. O’Gorman, 40 Mont. 391, 106 Pac. 887; First Nat. Bank v. Ingle, 37 Okl. 276, 132 Pac. 895. The jurisdiction of the subject matter is for the first time raised in this court, and since, if the court was without jurisdiction over the subject matter, it is of the character that could not be waived, we *151 are compelled to consider it. It is said the jurisdictional amount of the superior court is $200, exclusive of interest and costs, and that such sum cannot be made up by joining, as was done here, two or more separate demands or causes of action, each of which is below the jurisdictional amount. It cannot be questioned that the assignee of a chose in action is, under the law, the legal owner of it and as such entitled to sue for its collection. Sroufe v. Soto Bros. & Co., 5 Ariz. 10, 43 Pac. 221; Leon v. Citizens’ Bldg. & Loan Assn., 14 Ariz. 294, Ann. Cas. 1914D 1151, 127 Pac. 721. And if there are several assigned causes of action and they are for amounts within its jurisdiction, it is not questioned that they may be prosecuted in the superior court in one action (paragraph 420, Civil Code 1913); the only restrictions being that they shall be capable of the same character of relief and that actions ex contractu shall not be joined with actions ex delicto (paragraph 427, Civil Code). By section 6, article 6, of the Constitution, superior courts are given “original jurisdiction in all cases and of all proceedings” not exclusively vested in some other court. Section 9 of said article .6 provides that “the powers, duties and jurisdiction of justices of the peace, shall be provided by law,” with certain limitations therein stated. Paragraph 383 of the Civil Code of 1913 reads as follows: “They [justices of the peace] shall have jurisdiction to try and determine all civil actions for the recovery of money or specific personal property where the amount of the demand, or the value of the property in controversy, exclusive of interest and costs, is less than two hundred dollars.” The jurisdiction thus conferred is not exclusive and therefore does not deprive 'the superior court of jurisdiction of actions or demands for less than $200. In Miami Copper Co. v. State, 17 Ariz. 179 *152 Ann. Cas. 1916E 494, 149 Pac. 758, onr holding was in accordance with the above view, and we can see no reason to change that holding. Until the legislature sees fit to confer exclusive jurisdiction upon justices of the peace courts of demands where the amount, exclusive of costs and interest, is less than $200, such jurisdiction is concurrently in the superior courts. There is no question but that some one owes the plaintiff the sum sued for. Prior to August 25th, 1925, the City Ice Delivery Company was a partnership composed of defendant, Hattie L. Mosher, and one W. B. Lount. On that day Lount died, dissolving the partnership. Mosher, as the survivor, took possession of the assets and business (which was the retailing of ice to the residents of Phoenix and vicinity) and carried on until October 16th, 1925, the plaintiff and his assignors being employed and paid by her during such time. On the latter date she turned over said assets and business to a corporation she had caused to be organized, of the same name as the partnership, claiming to have sold and transferred such assets and business to such corporation, and continued to manage and control the business, hired and paid the employees, of whom the plaintiff and his assignors were a part or all. This went on until January 13th, 1926, when, upon the application of the heirs of W. B. Lount, C. P. Lee was appointed receiver of the partnership assets. It is undisputed that defendant, Mosher, or the corporation, one or the other, paid the help until January 1st, 1926. She insists that they were working for the corporation from October 16th, 1925, to January 13th, 1926, the date the receiver was appointed, and were paid by the corporation until January 1st, and that the unpaid wages were owing by the corporation, or if not then by the partnership, and should be paid by the receiver. *153 The question of the validity and effect of the organization of the City Ice Delivery Company, a corporation, and the transfer of the partnership estate thereto was recently before this court, and we cannot shut our eyes to what we said about the whole transaction. We held that the transfer was illegal and void; that the corporation paid no consideration and was in fact the alter ego of defendant, Mosher. Mosher v. Lee, Receiver, 32 Ariz. 560, 261 Pac. 35. Since the corporation was only the nominal identity of defendant, Mosher, it must be the help was working for her. She it was that employed them, and she it should be that pays them. The wages for which this suit was brought accrued during a time when the business was being operated by the defendant or her other self. There is no pretense that it was being carried on from January 1st to the 13th by defendant, Mosher, as surviving partner. The judgment against defendant, Mosher, as surviving partner is not justified under the facts of this case. The cause is remanded, with directions to vacate and set aside the judgment against Hattie L. Mosher as surviving partner, and in all other respects it is hereby affirmed, with costs to the plaintiff. LOCKWOOD and McALISTEB, JJ., concur.