TRAVIS SON v. HULETT SON

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Docket Number

No. 29996.

Attorney(S)

J.M. Travis, of Meridian, for appellants. Justices of the peace shall have jurisdiction of all actions for the recovery of debts or damages on personal property where the principal of the debt, the amount of the demand or the value of the property sought to be recovered shall not exceed two hundred dollars. Sec. 2071, Code 1930. It is a well-settled rule of law in this state that the jurisdiction of justice court is determined by the amount demanded by the pleadings. Betts v. Falgo (Miss.), 88 So. 636; Ross v. Natchez R. Co., 61 Miss. 12; Griffith v. McDaniel, 63 Miss. 121; Wainwright v. Atkins (Miss.), 61 So. 454. It appears to be a well-settled rule of law in this country that attorney's fee stipulated in a promissory note is always a part of the principal. Parks v. Granger, 96 Miss. 503, 51 So. 716; Blankinship v. Wortelsky, 6 S.W. 143; Baxter v. Bates, 69 Ga. 587; Allgelt v. Harris (Tex.), 11 S.W. 857; Almond v. Almond, 95 Ga. 204, 22 S.E. 213; Succession of Foster (La.), 26 So. 568; Levy v. Vesley (La.), 6 So. 630; Mullan v. His Creditors (La.), 2 So. 45-46-47; Carhart et al. v. Allen (Fla.), 48 So. 847; Jarnatt v. Marquez, 127 Calif. 58; Miller v. Mills, 32 Okla. 388; 35 C.J. 521; 15 C.J. 766. The justice of the peace court was without jurisdiction to render judgment as it did, and if the justice of the peace judgment was void, the circuit court could not take jurisdiction of said case. The circuit court has no other jurisdiction than such as the justice court had. Richardson v. Davis, 59 Miss. 15; Goodbar v. Owen, 70 Miss. 840, 12 So. 566; Hobbs Auto Co. v. Jones, 140 Miss. 610, 105 So. 764. S.M. Graham, of Meridian, for appellee. This court and many courts have held that where the attorney fee was fixed so that it could be calculated that it was a part of the principal sued for but that holding is wide of the mark in this case. There are no cases in Mississippi holding that a provision in a note for reasonable attorney fee to be paid under certain conditions is to be calculated in determining jurisdiction amounts, neither are there any cases holding specifically that it should not be added but there are very strong cases giving cogent reasons why it should not be added. N.O.J. G.N.R.R. Co. v. Evans, 49 Miss. 785; Jackson v. Whitfield, 51 Miss. 202. Interest depends upon a simple calculation. So the amount of the sum on which it is computed is not an element that could at all influence the conclusion in respect to jurisdiction. As to the variation in the opinion of witnesses as to what would be a reasonable fee and the variation in the minds of courts or jurors as to what a reasonable fee would be would render the jurisdiction of courts wholly uncertain if an unliquidated amount provided in a contract as a reasonable attorney fee was to determine jurisdiction which questions was discussed by this court in the case of Fenn v. Harrington, 54 Miss. 733, in which the court says, "The value of the property fixes the jurisdiction." Jackson v. Whitfield, 51 Miss. 202; Hedgecock v. Davis, 64 N.C. 650. We submit that the same reason given in the foregoing authorities for not considering interest as part of the principal in fixing the jurisdiction applies to unliquidated damages involved in a reasonable attorney fee as it is not only a mere incident to the suit on the principal of the note but one fee would be reasonable without suit and another fee would be reasonable with suit which suit fee does not accrue until the suit is filed and the reasonable fee varies not only with the opinion of the witness and the jurors and with the different communities but varies as the interest varies in amount.

Judges

McGowen, J., delivered the opinion of the court.

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TRAVIS SON v. F.A. HULETT SON.

1. JUSTICES OF THE PEACE.

Where plaintiff, in action on notes, prayed for reasonable attorney's fee, and attorney's fee, added to principal, amounted to two hundred one dollars and ninety-eight cents, justice of peace was without jurisdiction.

2. JUSTICES OF THE PEACE.

Where justice of peace was without jurisdiction because amount involved was over two hundred dollars, circuit court, on appeal, had no jurisdiction.

3. JUSTICES OF THE PEACE.

Jurisdiction of justice of peace is determined at time of filing of suit.

4. COURTS.

Amount of demand in civil suit, where honestly made, determines amount in controversy as regards jurisdiction in suit for unliquidated damages.

McGowen, J., delivered the opinion of the court.

In a justice of the peace court, Hulett Son sued Travis Son on notes amounting to one hundred sixty-seven dollars and sixty cents. The notes provided for a reasonable attorney's fee, to be paid by the makers, upon the notes being placed with an attorney for collection or suit being brought thereon. In addition to the principal sum demanded, the plaintiffs in the justice of the peace court also demanded fifteen per cent thereon and a suit fee of seven dollars and fifty cents as attorney's fee. The judgment of the justice of the peace was for one hundred sixty-seven dollars and sixty cents, principal, and thirty-four dollars and twenty-nine cents as attorney's fee, and accrued interest on the principal. The attorney's fee added to the principal amounts to two hundred one dollars and eighty-nine cents, the total sum demanded. Travis Son appealed to the circuit court, and there made a motion to dismiss, because the justice of the peace was without jurisdiction to render judgment for a sum in excess of two hundred dollars, as the principal amount in controversy. This motion was apparently overruled, and a judgment was there entered for the amount of the notes and attorney's fee.

The justice of the peace was without jurisdiction; the principal amount in controversy was in excess of two hundred dollars; therefore, on appeal the circuit court was without jurisdiction. The jurisdiction of a justice of the peace is determined at the time of the filing of the suit. See Catchot v. Russell, 160 Miss. 330, 134 So. 140, and authorities there cited. It is also settled in this jurisdiction that the amount of attorney's fee provided for in a note and demanded by the plaintiff is to be added to the principal sum of the note in order to test the question of the jurisdiction of the court. Catchot v. Russell, supra; Parks v. Granger, 96 Miss. 503, 51 So. 716, 27 L.R.A. (N.S.) 157, Ann. Cas. 1912B, 232.

It is said by appellees that the notes in the case at bar differ from the notes under consideration in the cases cited supra, in that in those cases a certain percentage of the principal was fixed as being the amount of the attorney's fee, while in this case the notes only provide for a reasonable attorney's fee. The answer is obvious. A reasonable attorney's fee was demanded, and the amount thereof was fixed at the time of the bringing of this suit, and recovery was had in accordance therewith. The rule is that the amount of the demand in a civil suit, where honestly made, fixes and determines the amount in controversy in suits for unliquidated damages as well as in cases where the amount is liquidated. See Fenn v. Harrington, 54 Miss. 733; Ross v. Natchez R. Co., 61 Miss. 12; Griffin v. McDaniel, 63 Miss. 121; Ball v. Sledge, 82 Miss. 749, 35 So. 447, 100 Am. St. Rep. 654; Yazoo M.V.R.R. Co. v. Payne, 92 Miss. 126, 45 So. 705.

De Jarnatt v. Marquez, 127 Cal. 558, 60 P. 45, 78 Am. St. Rep. 90, is a case in point. This was a suit brought in a court of the justice of the peace upon an instrument for one hundred fifty dollars, which provided for a reasonable attorney's fee, and one hundred dollars was demanded as a reasonable attorney's fee. The California court held that the plaintiff's demand was for two hundred fifty dollars, and that the judgment of the justice of the peace therefore was in excess of his jurisdiction and void.

The circuit court should have dismissed the appeal in this cause.

Reversed and remanded.

TRAVIS SON v. F.A. HULETT SON.

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