Routt's Adm'r v. Berry

Opinion by Judge Peters: This action was commenced by warrant from a justice of the peace, by which appellee was summoned “to answer a claim of A. W. Routt,” the holder of an order amounting to $11.60, and judgment having been rendered against the defendant in the warrant,he appealed to the quarterly court. He was unsuccessful in the quarterly court, and appealed to the circuit court, where he succeeded, and this appeal is now prosecuted by the personal representative of the plaintiff in the warrant, he having died intestate since the action was commenced. It appears in the record that the original warrant was amended by inserting the words “amounting to fifty dollars for balance on wheat.” When this amendment was made is not satisfactorily shown, but it was made before the trial in the justice court, for an account was filed b)' appellant against appellee for $50 balance on wheat. In Burbage v. Squires, 3 Met. 77, this court held, upon the trial of the appeal, the cause of action must be the same as that expressed in the warrant, and it must be a cause of action over which the justice had jurisdiction. In this case it will be conceded that the cause of action for the increased demand set forth by the amendment in the warrant was one over which the justice had jurisdiction. But was it the same cause of action as that set out in the original warrant? We think not. The action was founded on an order having the characteristics of a domestic bill of exchange, and to hold the drawer and endorsers responsible, the holder must use due diligence in presenting it for payment, and notice of nonpayment should be given to the parties. When the action on the order wias abandoned and a recovery sought on an account for wheat sold and delivered, the original cause of action was changed. As, therefore, the amount demanded in the original warrant was the matter in controversy, and that being less than fifty dollars, the court has no jurisdiction of the case. Wherefore the appeal is dismissed.