252 CASES IN THE SUPREME COURT LITTLE BOCK, 11838. BEERY' H. A. BERRY 'against JOHN LINTON.
LINTON: ERROR 40 . „Johnson Circuit Court. Indices of the peace having by law exclusive original jurisdiction in all mat,. ters of contract except. covenant, where the sum in controversy is one him-Ared dollars or 'under, two or more separate causes of action, each less than one hundred dollars, but arnounting in all to more than one hundred, cannot be joined together in one declaration so as to give the Circuit Court jurisdiction. This principle does not interfere with the settled rule; that the plaintiff may . join distinct causes of action in several counts of the same' declaration. The best criterion as to such joinder seems to be, that where the causes of action are of the same nature, and may pfoperly be the subject of counts in the same species of action; they may be joined., The question ofjurisdiction is not glanced at in the rules or decisions upon this subject. The case of Laugham Sr Gentry, vs. Boggs, 1 Olissouri Rep. 474, overruled.
It is not the aggregate amount demanded in the declaration, but the amount Of each separate demand or cause of action, which determines the jurisdiction. This was*an action of debt brought to March terM, 1833, in the . court below, by the plaintiff in error against the defendant in error.. The. declaration demanded the sum of $120 40 cts., and counted upon three .writingS obligatory, one for $44 25, one .for $1 , 2 14, and the other for $66 25. At the return term the defendant moved- the court to dismiss the suit, for want of jurisdiction apparent on the record, because the several writings sued on were each Within the jurisdiction of a justiceof the peace. This motion was sustained bj the court below, the case. dismissed, and the plaintiff sued hiS writ of error. Sco'rT, for plaintiff in errori The Circuit Courts have jurisdiction in all matters of contract where the sum in controversy is over oac hundred dollars. Const. Art. 6; Sec. 3. Where the plaintiff bas several, distinct canses . of action, be is allowed to pursue them accumulatively in the same writ: Stephen on:Pleading, p..279'.; It is ' a rule in law that several 'counts may be joined in the same-declaration for different causesiprovided they are of the same nature. . in an . action . upon , Contract the plaintiff may join as many different counts asthe has causes of action. 1. Tidd. p. 8, 9..' Indeed, if - • several actions are brought . by the same plaintiff vs, the same defencl: .ant, at.the same time for. causes of action Which may..be joined, the coart will compel the plaintiff to coosolidate them, and if the defend-N
OF THE STATE OF ,ARKANSAS. 253 ant be holden to bail to pay the costs of application. Chitty's Pleadings, Li i t oTcTili'll •Vol: 1 p. 228. July, issa 17:"Y LINTON, contra: LISTON. The Circuit Courts of?Arkansas are courts not of general jarisdietion, only having jurisdiction of contracts where ' the sum'exceeds one hun dred dollars, such is the jurisdiction of the Circuit Court Of the U. S.;. and it . is well settled that stuns cannot be added to give' that court jurisdiction. By the Constitution of Arkansas, all sums not . exceeding one hundred dollars and by express statthe, (See McCaMpbell's Digest, p. 281; 81,) it is expressly provided that no plaintiff shall institute his suit in the Circuit Court where the sum is in the jurisdietion of a justice of the . peace.. It is believed that each and every of the sums set out in plaintiff's declaration . at the time made and when declared . on, was within the jurisdiction of a, justice Of the peaee; and jurisdiction when once fixed cannot be altered, it being:a maxim that consent can do away error but cannot give jurisdiction. • I./X, Judge, delivered. the opinion of the court: This is an action of debt• brought by the plaintiff' against the defendant on several writings obligatory. - The defeodant moved the. eodrt to dismiss the cause for want of jurisdiction, which motion was sustained. To rerverse the judgment given on this point, the plaintiff' nOw prose-tut6-his 'writ of. error. This suit is founded' on several distinct causes . of action,7none of • whi;ch token separately,.amount to the sum' of one hundred dollars, of -• upWards, but all of . them , taken collectively, is . equal to the sum done hundred and twenty dollars and sixty-four cents. By an act nf the legislature approved October 24th, 1820, (Digest, 360 5 Sec. 26,) "the. jurisdi , ction , of the justice . of the 'peace was extended from ninety to one hundr ed dollars.." . And by an act of the legislature passedianuary 11th, 1814„." the•several courts of . record shall • take . cognizance • of .no action, suit, or . complaint -made cognizable before a juStiee of the peace.” . Digeet, p. 351. And by the schedule of the Constitution, (Sec. 2,p. 20,) " all laws bow in force in the TerritorY of Arkansas,• which are not repugnant ,to the constitutioo, shall retnain in full force. until • they expire by tilei k - own limitations or be altered or repealed:
254 CASES IN THE SUPREME COURT ixr.rte bYthe general assernbly." Arid by the 3d section of the 6th article my, 1833. Of the constitution, " the circuit court shall have original jurisdiction BEREA, v. over all civil caSes which shall not be cognizable before justices of the LINTON. peftee until otherwise directed by the general assembly, and original jnrisdiction in all matters ef contract where the sum in controversy is ever one hundred dollars." And by the 15th section of the same article, " Justices of the peace shall haVe individually; or two or mere of them jeintly, exclusive originaljurisdiction in all matters of contract, except in actions of covenant, where the sum in controversy is one hundred dollars or under. The constitution confers upon " the Cir-. cuit Court exclusive original jurisdietion of all crimes amounting to fd-ony it common law;" and it declares that jUstices of the peace Shall in no case have jurisdiction to try any criminal case or penal offence against the state, but may sit as examining courts, and commit, discharge or recognize to the court having jurisdiction, for further trial, offenders against the peace." It Will be ,perceived frem an inspection and analysis of these clauses that the object and intention of the convention was to create two separate and distinct jurisdictions both •in civil causes and in criminal offences, and that a certain class Or denomination of causes is assigned to the justices of the, peace, , and a different class or denomination of causes Was given to the Circuit Court. The question now before us only embraces a single point, but it is one of magnitude and of, so,rne difficulty. Has the Circuit Court jurisdiction of the case, or is it properly cog-nizable before a justiee of the peace, 'dr are the two Jurisdictions concurrent and has the party'sueing a right to his election. The decision of this question deperids upon the construction of the constitution and the principles of law applicable to that inStrument. The declaration contains but one count'embraeing several distinct causes of action, all accruing to the plaintiff in the same right and of the same dignity, and when the same are taken collectively, they amount to one hundred and twenty dollar§ and sixty-four cents, but taken seParately from each other, no orie sum or, cause of action equals or exceeds one hundred dollars. On the part of the plaintiff, it is contended that several distinct causes of action can be joined in One count or in different counts - in the declaration, and if' their united sum exceeds one hundred dollars,
OF THE STATE OF AR KNSAS. 255
the Circuit Conrt has jurisdiction of the subject' matter in dispute ; . and urrte ROOK,. to dismisi a ease under such cyeurnstunces is manifest error. July, 1831 To suStain thiS position it is said that the law abhors a multipl B ic E i R t R y Y , or circuity of actions,and therefore . the party may joinin . the same LirgOtr. declaration one or several counts, but diarent and distinct causes of aetion, and where it appears a plaintiff has two or more causes of actiOn, which may be joined, he ought to bring one action , only, and if he does not, a rule will be entered against him to consolidate his action and compel him to pay the. costs. That a plaintiff who has several distinct causes of action is allowed to pursue theni accumula-tively, cannot be denied. But then this principle has exclusive reference and application .to joining distinct causes of action in several counts in the saMe declaration. Thus in an action upon contract in atcount, assurnpsit, covenant, annuity, or scire facias the plaintiff may join as many diflerent Counts as he has causes of action. So in actions for cost independently of contract, the plaintiff may join in case or detinue, replevin or trespass. Counts in .aetion upon contract 'canna be joined with counts for wrongs independently of contracts, nor can counts in any one species of these actions be joined in counts of another. 1 Ba . c. Abridg. 30; 2 Lutw. 1449; 1 Ld. Raym. 83; 11 John-son, 479; 9 Johnsón, 246; Thompson vs: Shepherd; Stephen on Plead. 275. , There has been truch dispute and conderable contrariety of opinion in regard to the trUe test to determin What different counts may, or may not be joined in the . same declarati n. LEE, Ch. Justice, contends that the true way to determine the ratter is to see whether the process and judgment are the same on both counts, while Justice W11.- 31°1' insists that the better criterion is to consider whether the two counts, joined in the same deelaration, would admit of the same judgment. But Justice BuiLen holds the rule to be universal, that where the same plea is pled and the same judgment rendered in both counts, \ they may be joined in the same declaration; otherwise not; but Tidd, in his excellent treatise on practiee, p. 9, 10, conclasively demonstrates, that none of those rules or tests \.re entirely free from objection. For instance, case and trespass cannot be generally joined, though the same plea and the same-judgment may be given in . both counts in the declaration. The best criterion seerni to be that where the causes Of action are of the same nature and may properly be the subject of counts
ift56 CASES IN THE SUPREME COURT LITTLE - ROI*. • in: the sarne:specles.of actiOn'they may be joined, otherwise they ceth Jq t y.. 1838, ' '• •••".. .• • • • • .• • • • • not. • Then the nature . of , the CaUse .Of .attion is the best,: though.nOt PE.E'P' y an infallitiletest 'by which to-decide . as to the joinder or non-joinderOf Liwrorr,. different Counts or ciiStinct causes '. of action in the same declaration.. 1 Ch . i . i,.Picad. 229. Several counts'cannot e Joined in the same decla-. ratiOn,,,unless the , . .cause of action should in all of them, be . in the same right,: 4 rict . upon this ground' it , is holden; that a plaintiff cannot joinin the same 'declaration a dental-id as executor‘ with' another which ac, crtied-to. him in his own right; and such misjOinder would be a defect in substance and fittal in general demurrer . or in arrest ofjudgment, or. Inwrit of error.. • I. Salk. 1 , 02; Strangc,1§, 71,24 ;. Darn. 4.7 Eask 277; 2 Sauitderi, Williams no.te, 117; d.. c. It will he seen in all these cases . that the . question of jurisdiction was neVer made' or . ' eVen glanced at, and the principle s ' decided have entire and exCluSive reference to the joinder and non-joinder ' of distinct .catises . of action in the same' , declaration, and the rules and tess by which llte 'matter was defennined. In the case Of LaughaM r Gentry -vs. Boggs, (Missouri Rep. „ 474,) . the.point now. before us . Was expressly decided, and that on a statute exactlYisimilar to Oar oWn, the reason', ingof.the court is by no means satisfadfory, and proceeds upon a misL taken view Of the 'rule• requiring different catiseSof action . .te, be consolidated; in ,order that ' the defendant may not be hnrrasSed by a multiplicity of suits or the . payment of unnecessary cOsts.. The cOurt take for granted t5e question they had td decide and the authorities they rely on in support of their opinion, Prove nothing;:;for it cannot, he . shown that they Possess the . most remote applicability..to theSubject that was before them. Does it necessarily follow because separate and . distinct causesof action may be joined in . different counts in the same declaration, where they accrue in the- same 'right,, that therefore, when each of the causes of action 'taken seParately is net Within the jurisdiction of theCircuit Court that it is lawful to, unite them and thereby confer jurisdiction upon that tribunal against the express intention and .deliberate .will of the Legislature, -Sucneonclusions; carried fully outnr , pushed to their legitimate consequences, would enable the court, by cOnstrUction, to change the, entire jurisdiction of the different legal tribunals, and that too in dx.preSs ' Oolation of thelaws and the constitution. The . . queStion now, before us 'has been 'expressly decided in Lightfoot Vs: Peyton, .1.1*-diri, p 3 ,..and in Grant. vs. Tams
OF THE , STATE OF ARKANSAS. 257 4.) . Co., 7 Monroe, 221., the doctrine is again recognized and, confirmed, WTTLE ROCK, that it is illegal to unite several demands in order to produce a sum that July, lsse. would give jurisdietion to the court, When without that union . it had no .1jEggy vs. cognitance of the matter.. The court seem to conSider the question so LINTON. clear and familiar that no train of reasoning or authorities are cited in support of the principle. • The constitution puts this matter in a clear point of view. It declares that " the Circuit Court sball have original jurisdiction of all civil .cases, which shall not. be cognizable before a justice of. the peace where the .Sum in controversy is over one htindred dollars." Are the separate demands here cognizable before a justice of the peace, or is the sum in controversy, over one hundred dollars. It is evident that taken separately„they fall within-the jurisdiction of the justice of the peace, for the amount , in controversy is less than one hundred dollars, - and the constitution declares "that j ustices of the peace shall individually, or two or more of them jointly, have exclusive original jurisdiction in all matters . of contract, except in actions of covenant, Where the sum in controversy is one hundred dollars or under." -Language cannot be more certain or explicit than the terms here . used. It was the ohject.and intention of the grant, not 'only to create two separate and distrnct jurisdictions, but to mark'their respective boundaries with the utrnest accuracy and precision. The jurisdiction_ of each court in its owsi paper and peculiar sphere is 'original and exclusive, and it no-. where ,..ppears, either in the terms e'r ndture of the instrument itself, that it was ever in the design . or intention of the convention .to confer . concurrent jurisdiction upon both tribunals so far as the sum or demand in controversy was- concerned. If-the grant of the constitution does not constitute two separate and. distinct jurisdictions, then no words .or terms of expression are capable of creating such a: power. As the separate sums or detnands Were each cognizable before a justice of t he peace, then that cOurt had .exclusive jurisdiction of the matter in controversy, and that jurisdiction could not be wrested from it and the right -conferred on the Circuit Court. Theinjunction of the constitution is certain, positive and imperative, and .its obligations cannot : be defeated or annulled by indireetiOn, or by uniting several separate . sums .in one demand to give jurisdiction. Can the joinder Or non-joinder of-distinct causes of action in one count in the same declaration oust one tribunal of its jurisdiction conferred.by
258 CASES IN THE STJPREME CO slIT\ 1 1 . 111T,E the . .constitution and -. give . it to, another .in ViOlation of it etpress . provi-j uly. 1838. sions. If sneli , shOuld-he the cdnstruction given lo,the instruMent, tbe IIERRY suitors by their Mere election woUld have it, in . their power, .not only LINTON. wholly to disregard the positiVe injunctions . of the grant; 'but to change and alter its meaning in one of its mOst essential proviSions and thereby , to'create a concurrent juriSdiction in a c.ertarn class of cases unknown. to the Constitution. As the juritdicticii - _ . of • the CircU - it C • ourt and justices Of the peace are kept sepafate and distinct in its creation-and-organization4TWhat. rule of construction or Upon what principle cf justicecan they be united for the purpose of defeating the , will and , Objects of . the grant. N Theprinciple . of separate and distinct jurisdictions pervades ':onr , whole judicial • ,system,', and it was the design Of the constitution to pth-serve one Unbroken . and 'harmonious chain of : action throughout:the entire plan. For instance„ the Supreme Court has appellate jurisdiction only, except in cases 'otherwise provided for by the constitution.. The Circuit- Court has exclusive original jurisdiction in all cases • that. amount to felony at, common law. And jaStices 'of the peace have na jurisdiction to try and, determine criminal or penal causes, but may examine, commit, discharge or recognize offenders.to the court, havii% jurisdiction for further trial; they have no jurisdiction in ciVil 41ses except the . surn in controversy i8 one hundred . dollar's or under., • What. -is the true Sum here in controversy ? /sit the aggregate araount set forth in the declaration or . writ, G or is it the separate 'and • distAnct sums or causes of action? Can the plaintiff by uniting several . demands in one count,' not only evade . the express provisions of the conStitution, but commit What is termed in law a fraud upon . the instrument itself, and thereby confer a jurisdiction upon the Circuit Court, 'which it was never intended . to possess? Certainly not, • Again, iithe juStice of the peace bad exclusive jurisdiction of the subject•matter, then the Circuit. Court can have no part of that jurisdiction . except by appeal or writ Of error. It cannot:originally take cognizance of the cause, for it has noL original jurisdiction of any , civil cause which is.cognizable before a justice of the peace. This being the Case, it is clear that the Circuit .- CoUrt did right to dismiss the cause for .wrrnt of jurisdiction...The judg7- ment of the court below mast therefore be affirmed %3-ith costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.