Prairie Grove Cheese Manufacturing Co. v. Luder

89 N.W. 138, 115 Wis. 20, 1902 Wisc. LEXIS 183

• Court: Wisconsin Supreme Court
• Decided: June 19, 1902
• Status: Published

Opinions

The following opinion was filed February 18, 1902:

WiNsnow, J.

Sec. 3512, Stats. 1898, defines and limits the jurisdiction of justices of the peace, and provides, among other things, that a justice shall have jurisdiction over:

“(1) Actions arising or growing out of contract express or implied, wherein the debt or balance due or damages claimed shall not exceed two hundred dollars. (4) Actions founded on any account when the amount of the plaintiff’s account, proven to the satisfaction of the justice, shall not exceed five hundred dollars and when the samé shall be reduced to an amount not exceeding two hundred dollars by credits given or by the setoff or demand of the opposite party.”

The justice before whom this action was brought held that it was an action upon an account which originally exceeded $500 and fell under the fourth subdivision, above quoted, and hence he dismissed the action for lack of jurisdiction. The circuit court affirmed this ruling, and the only question presented which we find it necessary to pass upon is whether this ruling was right.

The plaintiff claims, on the other hand, that it is an action arising out of an express contract, wherein the balance due does not exceed $200, and hence that it falls clearly within the grant of jurisdiction contained in the first subdivision, above quoted; that, being expressly included within one subdivision, it is immaterial whether the terms of another subdivision. include it or exclude it. Were the question a new one in this state, the argument of the plaintiff would seem to be a strong one, but the question seems to have been settled in the case of Nimmick v. Mathieson, 32 Wis. 324. That was an action in all essential particulars like the present action. While its close similarity to the present case.is not entirely apparent from the printed report of the case, reference to the case and briefs shows it to have been practically the same ease as the present. A lot of zinc ore was sold by plaintiff to defendant at a certain price per ton, and was weighed and delivered at various times, and. payments were from time to time made by the defendant, and a balance of less than $200 was claimed to be due by the plaintiff. This court held, however, that there was no doubt that it Was an action founded upon account, because it contained a number of distinct items of debit and credit of different dates, and that the subdivision which determined the jurisdiction of justices in actions upon .account, being a specific provision strictly applicable to that action, must be considered as controlling, notwithstanding the general language of another 'subdivision identical in terms with subdivision 1 of the present statute. This decision was rendered in 1873, and has not been overruled or criticised since that time, and we are inclined to follow it.

By the Qourt. — Judgment affirmed.

Appellant moved for a rehearing, which was granted April 22, 1902, and the cause was reargued May 16, 1902.