Stone v. Murphy

Wright, C. J. The first error complained of by tbe defendant, in'his affidavit, which was the basis of the proceeding for the writ of error, was, that the suit being on a bond for three hundred dollars, the justice had no jurisdiction. The plaintiff claimed, however, only one hundred dollars. The amount claimed is the criterion of jurisdiction, and not the amount that may appear to be due or owing on the instrument declared upon.. Again; the affidavit alleges, that there was no breach of tbe conditions of the bond averred by plaintiff, and that none of the conditions bad been violated. By the Code, the pleadings before a justice of the peace, may be written or oral, and when oral, they must, in substance, be entered by tbe justice in his docket. But, in no case, is it necessary, that the justice should set tbe same out with the particularity required in a formal petition. He is to give the substance of what the plaintiff claims, and more'than this is not required. In this case, the notice 'specifically informed the defendants that plaintiff claimed “ one hundred dollars as justly due him on attorney’s lien, secured by bond, made by you .(defendants), Dec. 30, 1854, and filed in the district clerk’s office of,” &c. The justice’s transcript shows that this was substantially entered by him on his docket, as the plaintiff’s cause of action. We do not think it was necessary that such entry of the justice, should show and specify the breaches' of which plaintiff complained. No petition was necessary; but tbe notice is required to state the cause of action in general terms, so as to apprise the defendant of the nature of the claim against him. Code, § 2272. This was [38] done most clearly in this case. So far as -relates to the averment, that none«of the conditions of the bond had been violated, it is sufficient to say, that no return was made by the justice to this alleged error; and to such return we must refer, in determining whether there was such error in his records and proceedings. The averment in the affidavit, amounts to nothing, unless there is a response to the same in the justice’s return. In the third place, it was averred, that the bond upon which suit was founded, was not filed until after the commencement of the trial, and that no claim was filed showing that plaintiff was entitled to recover on the bond. It would seem, that when the plaintiff commenced his action, he deposited with the justice the bond, as also a bill of items, specifying the services referred to in said bond. The justice, however, failed to .mark said bond as filed. This failure could not prejudice the rights of the plaintiff for if, in truth, deposited with the justice as the foundation of the cause of action, and in his office as such, it could make no difference that he had failed to write upon it the date of such deposit. And if such previous filing had been overlooked, and it became necessary to indorse it, it was not only the right, but the duty, of the justice, to make such indorsement, nunc pro tunc, when such omission was brought to his attention. It is true, that it appears that plaintiff for some cause, withdrew his bill of items, and had leave to proceed on his oral pleadings. This was something that he need not have done, but having done it, we cannot see how the defendant could take advantage of it. The bond sufficiently showed defendant’s liabilhy, and that was in legal effect a part of the papers and proceedings, so far as disclosed in this record. The proof made after the defendant’s withdrawal, is not stated, and we must presume that it was sufficient to justify the judgment. The fourth and last error stated in the affidavit, relates to the withdrawal of said bill of items, and the leave given to the plaintiff, by the justice, to proceed upon said bond. This has been already sufficiently noticed, in what we have said, as to the third cause. We may say this, however, in addi [39] tion, that by tbe bond, tbe'defendant was liable to Stone, for whatever might be due him for the legal services thereby secured. While it is not clear, yet we infer from the record., that the bill of items filed was against the principal alone, and not against the principal, and his sureties. The defendant moved to dismiss, because the bill of items did not charge anything against him. It appears that the justice “ entertained” the motion, (but whether it was sustained, is not stated, unless that is what the justice meant by saying he entertained it); and thereupon plaintiff relied upon the bond and oral pleadings. The plaintiff did right in filing his account, with the bond, and if the justice, by his ruling on the defendant’s motion, committed an error against plaintiff, defendant cannot complain. . "W e conclude, therefore, that there was no such error in this proceeding, as to justify the District Court in reversing the judgment of the justice. Cause remanded, with instructions to render judgment in accordance with this opinion.