Stroud v. Conine

Hart, J., (after stating the facts). It is contended by counsel for 'the defendant that the 'amount sued for was in excess of the jurisdiction of the justice of the peace and that his judgment was, therefore, void. In this contention we think counsel are right. In Euling Case Law, volume 1, page 352, it is said: “A contract to pay money in installments is divisible in its nature, that is, each default in the payment of .'an installment may be the subject of an independent action provided it is brought before the next installment becomes due; but each action should include every installment due when it commenced unless a suit is, at the time, pending for the recovery thereof, or other special circumstances exist.” In the case of Fort Smith Paper Co. v. Templeton, 113 Ark. 490; 168 S. W. 1092, the court held: “A suit for monthly installments of rent due under a lease specifying a yearly rental payable in monthly installments is a ‘single cause of action’ within Constitution 1874, article 7, section 40, limiting the jurisdiction of justices of the peace in matters of contract to controversies where the amount does not exceed $300, and where the amount of the installments exceeds $300 the justice has no jurisdiction. ’ ’ In the ease of State v. Scroggin, 10 Ark. 327, the defendant had executed a written instrument agreeing to pay the State for the use of internal improvement the sum of $400 in five equal installments, payable in one, two, three, four and five years after date. The court held that several installments being due, a separate action could not be brought on each installment so due, but that one action for the breaches of the contract must be brought, and that for this reason the aggregate amount of installments due was the measure of damages and determined the jurisdiction of the court. (1) So, here, there wias a contract for an entire service, but the parties stipulated that payment for such service should be made periodically in fixed sums, and the failure to make three of these payments became the foundation of this suit. The plaintiff bad a right to sue for the damages caused by the nonpayment of the installments as they came due, but, having waited until three installments became due before bringing his suit, the aggregate amount of the installments then due determined the jurisdiction of the court. The amount sued for by the plaintiff is, the sum in controversy in this action and determines the jurisdiction. That amount being in excess of the amount for which suit may be brought before a justice of the peace under our Constitution, it follows that the judgment rendered by the justice of the peace in favor of the plaintiff against the defendant on the 17th day of December, 1909, was without jurisdiction and void. On the 20th day of December, 1909, the justice of the peace granted the defendant a new trial and entered an order setting aside the judgment renderd on the 17th day of December. On the 24th day of December, 1909, .the defendant filed an affidavit for an appeal from the judgment rendered on December 17, 1909, and contends that this brought the case before the circuit court for trial anew. He rélies on the case of Cathey v. Bowen, 70 Ark. 348. We do not think that case is an authority for his contention. There a motion for a new trial was filed by Cathey against whom Bowen had recovered judgment, and it was granted. Subsequently, Cathey asked to .withdraw his application for a new trial, and prayed an appeal to the circuit court, which was granted. The court held that this left the judgment .against him in full force. The reason given was that, taking the whole record together, it could be construed as nothing more than the filing of ¡a motion for a new trial, which was afterward withdrawn by the party making it, leaving the judgment as entered by the justice of the peace to stand. There it was not shown that the justice of the peace ever set aside his judgment, and that was the controlling reason which moved the court to make its ruling. (2) In the present case, the justice of 'the peace actually set aside the judgment and entered an order to that effect. Where a justice of the peace sets aside a' judgment and grants a new trial, the judgment ceases to exist. 24 Cyc., 604-5. The justice of the peace had set aside the judgment against the defendant before the defendant filed his affidavit for appeal. In other words, when the affidavit for appeal was filed there was no judgment against the defendant and his affidavit for appeal amounted to nothing. No appeal was granted him from the judgment subsequently entered by the justice of the peace. Therefore, the circuit court properly dismissed his appeal. (3-4-5) The defendant, however, was entitled to have the judgment of the justice of the peace reviewed by certiorari. It is true, we have frequently held that a writ of certiorari can not be used as a substitute for appeal for the mere correction of errors nr irregularities in the proceedings of inferior courts, and it is a general rule that certiorari is not an appropriate remedy if efficient relief can be or could have been 'obtained by a resort to other available modes of review; Bxxt one of the exceptions to the rxxle is that a writ of certiorari can be used 'by the circuit court in the exercise of its appellate power and superintendent control over inferior courts where the tribxxnal to which it is issued has exceeded its jurisdiction. Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605; Railway Company v. State, 55 Ark. 200; Gregg v. Hatcher, 94 Ark. 54. (6) As a general proposition, the amount claimed or in controversy is the test by which the jurisdiction of the justice of the peace is to be determined. Thompson v. Willard, 66 Ark. 346; Little Rock, Miss. River & Tex. Ry. v. Manees, 44 Ark. 100; Lafferty v. Day, 7 Ark. 258. (7) A written complaint was filed before the justice of the peace in the instant case and the amount claimed for which judgment should be rendered against the defendant was $375. The amount claimed by the plaintiff is the 'sum in controversy and determined the jxxrisdiction of the justice of the peace. The amount demanded exceeded the jurisdiction of the justice of the peace, and, such being true, certiorari could be invoked to set aside the judgment rendered without jxxrisdiction. The jxxdgment is, therefore, reversed and the cause remanded, with directions to the circuit court to quash the judgment of the justice of the peace in favor of the plaintiff against the defendant.