Stephens v. Reberet

ROBERTSON, P. J. — Plaintiff filed his statement and affidavit in replevin before a justice of the peace to recover possession of a cow and corn in the possession of the defendant. The defendant appeared and filed a motion to dismiss, alleging as his reason therefor that the justice had no jurisdiction. The motion was sustained and later the judgment sustaining it was set aside and thereafter the motion was overruled. The plaintiff then filed an amended statement and affidavit alleging the value of the cow and corn to be $250 and claimed $50 as damages for the taking and detention thereof, for all of which he prayed judgment. The cause then proceeded to trial before the justice of the peace and as the result it was found that the value of the property was $140, and the judgment recites that the plaintiff claimed no damages. The defendant appealed to the circuit court and there renewed his motion to dismiss which was sustained, and the plaintiff has appealed. The plaintiff did not offer to amend his statement in the circuit court and his right to do so is not, therefore, before us for consideration. At the hearing of the motion plaintiff, over the objection of defendant, offered testimony for the purpose of proving that he in the justice of the peace court, abandoned all claim for damages. Under section 7758, Revised Statutes 1909, the jurisdiction of a justice of the peace in counties such as this county is, having a population less than 50,000 inhabitants, in actions brought- for the recovery of personal property, is limited to cases where the value of the property sought to be recovered, and.the damages claimed for the taking or detention and for all injuries thereto, shall not exceed, in the aggregate, $250. By section 7772, Revised Statutes 1909, it is expressly provided that the value [459] of the property, as set forth in the statement and affidavit, fixes the jurisdiction as to the value, and we are governed by the statement and affidavit as to the ‘ ‘ damages claimed” by reason of said section 7758. [Payne v. Weems, 36 Mo. App. 54, 56 and 57; Saunders v. Scott, 132 Mo. App. 209, 214, 111 S. W. 874,] These two sections of the Statute are the same as when first enacted (Revised Statutes 1879, sections 2881 and 2895), except that there has been a change as to the amount that may be involved (Laws 1891, pages 174 and 175). Other decisions are cited by respondent as bearing upon this construction of the Statute: Gootschalk v. Klinger, 33 Mo. App. 410, 417; Malone v. Hopkins, 40 Mo. App. 331, 332; Koche v. Perry, 90 Mo. App. 483, 488. Appellant has cited Best v. Best, 16 Mo. 530; Koester v. Lowenhardt, 177 Mo. App. 699, 160 S. W. 566; Wells v. De Grouveia, 161 Mo. App. 563, 143 S. W. 517, and Cook v. Decker, 63 Mo. 328, on the question of the right of a plaintiff, where he has brought an action to obtain a money judgment in an amount in excess of the jurisdiction of a justice of the peace, to abandon a portion of his claim and thereby confer jurisdiction. But in all of those cases there was an amendment of the account or statement to bring the demand within the jurisdiction, except in the Best case where it is said “that the justice was authorized-to enter a credit on the claim. ’ ’ In the case at bar no one but the plaintiff, or his agent, or attorney could amend. Since in an action of replevin the courts have been holding that section 7758 is as conclusive on the “damages claimed” as is section 7772- on the value of the property and some of these opinions were extant long before the Legislature amended what is now section 7758 we should hesitate to change that rule, because if the Legislature deemed this construction unreasonable it would likely have changed the statute in this respect when [460] the amendment was made. State v. Schenk, 328 Mo. 429, 455, 142 S. W. 263. The “sum demanded” under section 7395, Revised Statutes 1909, conferring jurisdiction where a money-judgment is sought, differs very materially from an action in replevin where, under section 7759, the plaintiff must accompany his statement with an affidavit. In the case at har the plaintiff, in the face of the motion to dismiss, amended his statement so that the justice of the peace had no jurisdiction and we can see no equity in his claim that he, as a matter of fact, intended to and did waive the damages. The judgment is affirmed. Sturgis and Farrington, JJ., concur.