Mason v. Hannah

Philips, P. J. This is an action of replevin, brought in the circuit court, to recover a watch, alleged in the petition to be of the value of one hundred and twenty-five dollars. No damages are alleged. It was admitted at the trial that the watch was of the value of one hundred dollars. Plaintiff had judgment, and defendants have appealed. The question arises on this record, did the circuit court have jurisdiction over the subject-matter of the action ? The source of its jurisdiction is found in section twenty-two, article six, of the state constitution: “The circuit court shall have jurisdiction over all criminal cases not otherwise provided for by law; exclusive original jurisdiction in all civil cases not otherwise provided for; and such concurrent jurisdiction with, and appellate jurisdiction from, inferior tribunals and justices of the peace as is or may be provided by law.” Section thirty-seven, same article, provides: “In each county there shall be appointed, or elected, as many justices of the peace as the public [194] good may require, whose powers, duties, and duration in office, shall be regulated by law.” Accordingly the legislature (Rev. Stat., 1879, sec. 1102), assigned to the circuit courts .jurisdiction, first, as courts oí law in all criminal cases which shall not be otherwise provided for by law; second, exclusive original jurisdiction in all civil cases which shall not be cognizable before the county courts, probate courts, and justices of the peace, and not otherwise provided by law; third, concurrent original jurisdiction with justices of the peace in all civil actions and proceedings for the recovery of money * * ' * when the sum demanded, exclusive of interest and costs, shall exceed fifty dollars and does not exceed one hundred and fifty dollars ; * * * in all counties or cities having over fifty thousand inhabitants, concurrent original jurisdiction with justices ol the peace of all actions or proceedings for the recovery of money, * * * when the sum demanded, exclusive of interest and costs, shall exceed fifty dollars, and not exceed two hundred and • fifty dollars.” The other clauses of this section pertain to actions against railroad companies, and the appellate jurisdiction of the circuit courts from the judgments, etc., of probate, county, and justices’ courts. Section 2835, Revised Statutes, which confers or defines the jurisdiction of justices of the peace, also has exclusive reference to “civil actions and proceedings for the recovery of money,” and is in harmony with the section ■defining the jurisdiction of circuit courts. It is to be observed that the original, exclusive jurisdiction of the •circuit court is given only where the action is not cognizable before a justice of the peace, “and not otherwise provided for.” In the matter of replevin, jurisdiction is conferred on justices of the peace by section 2881, Revised Statutes: “In all counties or cities, having over fifty thousand inhabitants, justices of the peace shall have jurisdiction of actions for the recovery of specific personal property, when the value of the property sought [195] to be recovered, and the damages claimed, etc., shall not exceed, in the aggregate, two hundred and fifty dollars ; and in all counties having less than fifty thousand inhabitants, justices of the peace shall have such jurisdiction when the value of the property sought to be recovered, etc., shall not exceed, in the aggregate, one hundred and fifty dollars.” This is a new section, first appearing in the revision of 1879. We will take judicial cognizance of the fact that Randolph county contains less than fifty thousand inhabitants. It follows, therefore, that the jurisdiction of the circuit court over the subject-matter of this action is not original and exclusive, because it is otherwise provided in said section 2881, giving to justices of the peace jurisdiction in the action where the value of the property does not exceed one hundred and fifty dollars. The property in controversy is of the value of one hundred dollars. Has the circuit court concurrent jurisdiction with justices of the peace? The statute confers this concurrent jurisdiction only “in all civil actions and proceedings for the recovery of money.” This is not such action. It is for the recovery, primarily, of specific personal property, and is in the nature of a proceeding in rem, with a consequential or conditional liability to a judgment in personam for the value of the res. As by the constitution concurrent jurisdiction of the circuit court with justices of the peace exists only when “provided for by law,” it cannot be assumed by the circuit court where the legislature has not so provided. Stamps v. Bridwell, 57 Mo. 23, 24. In the statutes of 1855 and 1865 (Rev. Stat., 1855, sec. 3, p. 925, and Gen. Stat., 1865, sec. 3, p. 697), concerning justices of the peace, there was in the corresponding sections to the one in the statute of 1879 a fourth subdivision conferring concurrent jurisdiction on justices of the peace and circuit courts in all actions, for the recovery of specific personal property, not exceeding the value of fifty dollars in the statute of 1855, and one [196] hundred dollars in the statute of 1865, and damages, etc., not exceeding twenty-five dollars. The omission of this subdivision from the statute of 1879 is significant, and we cannot assume that it was “unintentional, without trenching upon judicial legislation.” State v. Clark, 57 Mo. 25; City of St. Joseph v. Porter, 29 Mo. App. 605. It follows that the judgment of the circuit court is reversed, and the petition dismissed. All concur.