Kilgore Lumber Co. v. Thomas

Hart, J., (after stating the facts). In matters of contract justices of the peace have jurisdiction where the amount in controversy does not exceed the sum of three hundred dollars, exclusive of interest. Const. 1874, art. 7, § 40. Section 4605 of Kirby’s Digest reads as follows: “A setoff or counterclaim, though exceeding in amount the jurisdiction of the court, may be used to bar and extinguish the demand of the plaintiff; but no judgment shall be rendered in favor of the defendant for the excess, unless such excess is within the limits of the court’s jurisdiction as to amount. The -judgment shall ascertain the amount due to the plaintiff and give him a credit therefor on the claim used as a setoff or counterclaim.” In the case of Bunch v. Potts, 57 Ark. 257, the defendant interposed a counterclaim for $360. The court said: “The amount of the counterclaim placed it beyond the jurisdiction of the justice; and the appeal to the circuit court invested that court with no power to try any issue that might not have been tried by the justice.” That is to say, the court held that the sum demanded, and not the amount recovered, determines the question of jurisdiction. It is no answer to say that here the defendant only seeks to recover the excess, which is an amount within the jurisdiction of the justice court; for the defendant asked that a part of his counterclaim be used to bar or extinguish the claim of the plaintiff, and that makes it as much a' part of its demand as a judgment in its favor for the excess'. The Constitution contemplates that a justice of the peace shall only have jurisdiction to adjudicate matters within his juris die-' tion. Here the defendant proposes that the justice shall pass upon an amount beyond his jurisdiction; for it is settled that the circuit court on appeal can render no judgment that the justice might not have rendered. The pleading of the defendant in the present case required the justice to pass upon the question of whether it was entitled under the contract between the parties to the suit to recover the sum of $500 as liquidated damages. The effect of the defendant’s pleading is to ask a recovery for the sum of $500; for if a part of this sum is to be applied to the extinguishment of plaintiff’s claim under the judgment of the court, it, being a part of the judgment, is as much a recovery as that part of the judgment which is for the excess. This principle is illustrated in the case of Hunton v. Luce, 60 Ark. 146, where the court held that “a plaintiff may bring his action for less than is due him, remitting the balance, and thus bring his case within the jurisdiction of a justice of the peace.” The court, after calling attention to the opposing authorities on the question, said: “We will only announce our conclusion that the appellants had the right to bring their case within the jurisdiction of the justice of the peace by remitting a portion of the principal of their note. We do not see that it is any violation of the rights of a debtor to allow his creditor to remit,by voluntary credits a portion of his debt, and thus bring his claim within the jurisdiction of an inferior court. After the judgment of the inferior court is rendered upon the reduced claim, the part remitted is completely extinguished, and can never afterwards be asserted against the debtor.” Applying that principle to the case at bar, it will be seen that the defendant has not offered to remit a portion of his counterclaim so as to bring it within the jurisdiction of the justice; but, as already shown, is endeavoring to enforce his whole demand. As stated in the case of Derr v. Stubbs, 83 N. C., p. 539: “The remission must be absolute of all demand in excess of the justice’s jurisdiction, and such as would be cognizable before him if prosecuted by the defendant as an original cause of action.” Remission implies forgiveness, and means a voluntary relinquishment of a claim or a part thereof by the party capable of asserting it, and does not refer to the extinguishment of a debt or claim by agreement of the parties or by judgment of a court. It follows” that so much of ’section 4605 -of Kirby’s Digest as provides that the excess only of the counterclaim or setoff shall be within the jurisdiction of the justice is unconstitutional. -The court was correct in holding that it had no jurisdiction of the counterclaim in the form in which it was presented. Again, it is contended by counsel for defendant that the matters set up are available as a defense to the action. Now, a defense goes to the plaintiff’s right of -action. Under the terms of the contract between the parties to the suit, a-complete performance of the contract on the part of the plaintiffs was not required before they should be entitled to any pay for the timber cut and manufactured into lumber. On the contrary, it contemplated that they should be paid when the lumber was loaded on the cars,and delivered to the defendant. Hence the matters set up could not be used to defeat plaintiffs’ right of action by disproving it. This is borne out from the fact that the time limit given plaintiffs by the terms of the contract had not expired, and they had more than a year within which to finish removing the timber. The pleading was a counterclaim, which is defined to be “a demand existing in favor of the defendant against the plaintiff, and one which he might have prosecuted although the plaintiff had brought no action.” Bliss on Code Pleading (3d ed.), § 348. The judgment will be affirmed.