Catlin v. Aiken

Hutchinson, C. J. The principal question, to 'be decided in this case, is, whether the action ought to have ‘been dismissed for want of'jurisdiction. It was an action on book account, brought before a Justice of Peace; and carried to the County Court by appeal. The defendant •there filed a motion to dismiss for want of jurisdiction, be-cause the debtor side of the plaintiff’s account exceeded $100. Its amount was $165,54, and there was a credit of $66,50. It seems the plaintiff contended, that his account was made to exceed $100 by the mistake of a charge in his favor of $66,50, which should have been charged ip favor of Moses & Lynde Catlin, and his credit of that sun? was merely a credit showing the same sum carried to the account where it belonged. The whole was submitted to an auditor, to take the account, and report the facts. lío made his report, to said County Court, when the motion to [180] dismiss was renewed. The Court refused to dismiss, and 'rendered judgement of the plaintiff for abalance of $48,50. To this decision the defendant excepted, and the action is brought to this Court, and has been argued upon that question. On recurrence to"the auditor’s report, we find he has not found, in express terms, that the charge of $65,50 was charged by a mere mistake, and that the credit of the same sum, as it was made in account books, had corrected the mistake, and left the account as it should be. Such a report would have removed all difficulty, and restored the jurisdiction of the Justice as fully as if the mistake had never existed. We must not permit a mere mistake in charging, or posting, an item to take the cause from the jurisdiction of the Justice, where it would otherwise rest, nor a fictitious charge, to give jurisdiction to the County Court. See the case of Brush vs. Hurlbut, 3 Vt. Rep. 46, The auditor has reported the accounts of both parties, both debt and credit. By this it appears, that the defendant has given credit to Moses &, Lynde Catlin for the same articles composing the $66,50, which the plaintiff had charged to the defendant, and afterwards carried to the account of Moses Catlin, He further reports the custom of Moses Catlin to make charges, in his own business, on the plaintiff’s book ; and further, that the original charge, now called a mistake, is in the hand-writing of Moses Catlin. We consider all this a sufficient report of facts, to show the charge of the $66,50 to be a mere mistake. But it is urged, that the charges of the flour and transportation of the same, which form the real account of the plaintiff, amount to $99,04, and that this, with the interest upon it, exceed $100. This argument cannot be correct, unless it be first determined, that this demand certainly draws interest, like anote bearing interest. The plaintiff has charged no interest, in this case, and no fact appears, which renders it certain, that any interest ought to fee allowed him, or, if any, for how long a time it ought to be cast. Interest is never to be cast on book accounts, unless by reason of some contract upon the subject, otherwise than upon the balance, and that only from the time when that balance ought to have been paid. As the plain [181] tiff asks for no interest, and no fact, reported, shows him entitled to interest, there is nothing upon that score to af-feet the question of jurisdiction. J. JV. Pomeroy, for defendant. H. Leavenworth, for plaintiff. The defendant’s counsel has suggested that the action ought to have been assumpsit, because the account is joint, being in favor of Moses and Guy Catlin. But this is only true of the charge made by mistake, and not of the real account which leaves the question of jurisdiction the only question to be decided, and, upon that question the decision of the County Court was correct, consequently, w.e affirm that decision.