French v. Keator

Taylor, J. Whether the plaintiff was entitled to costs; depends upon the question whether a justice’s court would have had jurisdiction to try the action. We think it very clear, from the findings of the referee, from the plaintiff’s complaint, and the defendants’ answer, that a justice’s court would not have had jurisdiction of the action. By the bill .of particulars of the plaintiff’s claim, filed in the action, he claimed $784, and credited the defendants with $468.75, claiming a balance due him of $820.25. The answer of the defendants was a general denial, and a further answer as follows: “ Defendants, further answering, aver that prior to the commencement of this action said defendants had fully paid and discharged any and all claims which this plaintiff had against these defendants.” Upon the pleadings and answer, and from the report of the referee, we think it very clear that the action involved the examination of an account on the part of the plaintiff exceeding $500, and that, consequently, a justice’s court would have had no jurisdiction of the action, under the provisions of subdivision 4 of section 3572, R. S. The general denial put the plaintiff to the proof of his entire claim, and, as the report of the referee shows that his claim amounted to more than $500, a justice’s court would have had no jurisdiction. We do not think the nature of the case was changed by the fact that on the trial the defendants admitted that a very large part of the plaintiff’s claim was correct. The answer having put the whole of the plaintiff’s account, in issue, he was bound to come to trial prepared to prove the whole, and the fact that he proved it by the admission of the defendants 292 is immaterial. The plaintiff was compelled to prove the whole claim, and the court had to find from the evidence that the whole was proved; and, that whole exceeding $500, a justice’s court would have no jurisdiction of the action. What would have been the rights of the parties as to costs in this action if the defendants, by their answer, had admitted all the plaintiff’s claim except certain specific items, which amounted in all to less than $500, it is unnecessary to decide in this case. That the plaintiff’s claim, as reported by the referee, was an account, within the meaning of the statute above quoted, is, we think, clearly established by the following decisions of this court: Cooban v. Bryant, 36 Wis., 605; Nimmick v. Mathiesson, 32 Wis., 324; Van Patten v. Wilcox, 32 Wis., 340; Henckel v. Wheeler & Wilson Manuf’g Co., post; Barker v. Baxter, 1 Pin., 407. By the Court.— That part of the judgment of the circuit court appealed from, is affirmed.