Deihm v. Snell

Opinion, Mr. Justice Williams: Tbe assignments of error raise a question of jurisdiction. Tbe action originated before a justice of tbe peace and was [323] for the recovery of the balance due on a note given on the 21st August, 1878, for $83.90. The justice entered judgment against the defendant on the 28th January, 1884, for $56.87. The defendant appealed, and in the Common Pleas pleaded set-off. On the trial he gave in evidence, under objection, a contract between himself and Snell, bearing date on the 9th April, 1875, duly signed and sealed, which, after reciting that he had sold to Deihm a lot of landin Pottsville for the sum of $1,250, and that there was a mortgage upon it in favor of A. H. Halberstadt for $900 and interest, contained the covenant of Deihm to pay the said mortgage “ in part payment of the purchase-money ” of the said lot. He then gave evidence to show that the mortgage was not paid by Deihm, but was proceeded upon by the holder and the property bound by it brought to sale by the sheriff; that he became the purchaser of the mortgaged premises, which included the lot sold to Deihm and an adjoining one owned by himself, at an actual cost of $1,214. He claimed to recover the difference between this sum and the $900 which Deihm agreed to pay, together with the interest thereon. The court below held that after the appeal from the justice the trial was de novo, and therefore the limits which bounded the jurisdiction of the justice were left at the door of the Common Pleas, which was unfettered by them and could take cognizance as in an action originally brought therein. Accordingly the court admitted the alleged set-off, extinguished the plaintiff’s claim with part of it, and rendered a judgment in favor of the defendant for $254.83. It is true that for certain purposes a trial in the Common Pleas after an appeal from a justice is de novo, but it is nevertheless a trial of the same case. The mechanical work of the trial, such as the formation of the proper issue, the production of the testimony, and the decision of the questions involved, is de novo, but the cause of action remains the same. If the justice had no jurisdiction, an appeal from his judgment does not dispose of the objection, but it may be raised at any time in the Common Pleas. Neither the laches of the defendant nor his consent can give jurisdiction: Collins v. Collins, 37 Pa. 387. The contract set up by the defendant was one which provided for the payment of $900 of the purchase324 money upon a lot in Pottsville sold by Snell to Deibm. The damages which Snell claimed, and was allowed to recover, were more than $300. The learned judge before whom the case was tried seemed satisfied that a justice of the peace would have had no jurisdiction of an action brought upon the bond, both because of the amount claimed to be due, and because it was given for the purchase-money of land, the title to which might therefore come in question on the trial; but he asks, “ If Snell’s set-off be regarded as a claim arising out of a real contract, does it follow that he cannot avail himself of it in the Common Pleas because it is excepted from the jurisdiction of the justice ? ” He then proceeds to answer this question in the negative, holding that after an appeal the jurisdiction of the Common Pleas, and not that of the justice, is to be considered. This was clearly wrong. The statutes limiting and defining the jurisdiction of a justice are not left behind when a case comes into the Common Pleas by appeal, but are to be applied by the judge in the same manner as by the justice. If the justice had not jurisdiction of the cause of action or the contract or demand sought to be used as a set-off, the Common Pleas will not have it after an appeal. The forum is changed by the appeal, but the cause of action remains the same: Moore v. Wait, 1 Binn. 219; Owen v. Shelhamer, 3 Binn. 45; Collins v. Collins, supra; Bergman v. Roberts, 61 Pa. 497. Judgment reversed, and venire facias de novo awarded.