Culbertson v. KinEvan

9 P. 455, 68 Cal. 490, 1886 Cal. LEXIS 470

Opinion

Myrick, J.

— This action was commenced in a Justices’ Court to recover a penalty for collecting $1.50 for toll, which was alleged in the complaint to be more toll than the defendant was authorized to collect. The answer averred that the amount collected was a legal toll, and demanded that the case be transferred to the Superior Court. The justice refused the transfer, tried the case, and rendered judgment for plaintiff. The defendant appealed to the Superior Court, where the case was again tried, and judgment rendered for plaintiff. ,

The pleading presented the question of the legality of a toll. The Justices’ Court had no jurisdiction to try and determine that question. (Canst., art. 6, sec. 5.) It may be remarked that the sole question presented on each of the trials was, whether the amount collected was a legal toll; there was no question as to an excessive collection, if the right to collect any toll existed.

The judgment is reversed, and the cause is remanded.

Morrison, C. J., and Sharpstein, J., concurred.