Moffatt v. Cassimus

190 So. 297, 28 Ala. App. 582, 1939 Ala. App. LEXIS 185

• Court: Alabama Court of Appeals
• Decided: February 7, 1939
• Docket: 6 Div. 378.
• Status: Published

Opinions

The suit in this case was begun by summons and complaint against the defendant claiming $260 plus $100 as attorney's fee as is provided in the note sued on.

It is admitted that the amount claimed in the complaint is in excess of the jurisdiction of the Intermediate Court of Jefferson County, in which court the suit was brought.

The cause coming on for trial on the 6th day of June, 1938, on the complaint as originally filed in this cause, plaintiff, then and there, sought to file a remittitur reducing the amount claimed in the complaint to an amount within the jurisdiction of the court. The court, then and there, disallowed the filing of said remittitur. Thereupon, the court entered a judgment dismissing this cause for want of jurisdiction, taxing cost of court against plaintiff, to which judgment the plaintiff, then and there, duly and legally excepted.

There is but one main question presented by the various assignments of error; and that is: May a plaintiff after having filed a suit, claiming amount in excess of the jurisdiction of the court, in which the suit is filed, so amend his complaint by entering a remittitur in such amount as to reduce the claim to an amount within the jurisdiction of the court?

There is a marked distinction in this State between jurisdiction of the person and jurisdiction of the subject matter, and in personal actions depends upon two elements: The subject matter to be adjudged; and the presence in court of the parties whose rights are to be affected by the judgment. In respect of subject matter the court acquires jurisdiction by the act of its creation. Lamar v. Commissioners' Court, 21 Ala. 772. By jurisdiction over the subject matter is meant the nature of the cause of action and of the relief sought; that is, in a court of limited jurisdiction the amount which it is authorized to enter judgment. Cooper v. Reynolds, 10 Wall. 308, 316, 19 L.Ed. 931; Woolf v. McGaugh, 175 Ala. 299, 57 So. 754.

When it is jurisdiction of the person, a failure to bring the parties into court by proper process may be waived either by direct or implied waiver.

Consent, however, cannot confer jurisdiction of the subject matter, for that is derived from the law. As was said by Brickell, Chief Justice, in Ex parte Rice, 102 Ala. 671,15 So. 450, 451: "There is a wide difference between conferring jurisdiction by consent and consenting to something within the power of the court deemed promotive of the convenience of the parties." It is further recognized in the case of Woolf v. McGaugh, 175 Ala. 299, at page 306, 57 So. 754, that is the duty of the court whenever it appears that its judgment is asked in a case, which it has no power to decide under any circumstances, to repudiate the cause ex mero.

At the inception of this suit, as shown by the claim in the complaint, the court in which the suit was filed had no jurisdiction. It, therefore, had no power to allow an amendment conferring jurisdiction, since that in itself would be an exercise of such jurisdiction. 15 C.J. 854; Holton v. Holton,64 Or. 290, 129 P. 532, 48 L.R.A., N.S., 779; Roy v. Phelps,83 Vt. 174, 75 A. 13; McIntyre v. Carriere, 17 Hun, N.Y., 64; Hynds v. Fay Bros., 70 Iowa 433, 30 N.W. 683.

The foregoing rule is recognized in England in the case of Hodgson v. Bell, L.R. 24 Q.B., Div. 525; wherein it is held that payment of a part of a claim in order to reduce the amount below one hundred pounds so that the action can be sent from the high court to the county court must be made before the action was commenced.

The fact that payments had been made to the plaintiff subsequent to the bringing of the suit would not alter the case. The status of the parties is fixed at the beginning of the suit, and, under the Statute, all amendments relating thereto. We hold, therefore, that the trial court was without jurisdiction to allow an amendment in a suit wherein it had no jurisdiction of the subject matter.

The judgment is affirmed.

Affirmed.