Berroth v. McElvain , 41 Kan. 269 ( 1889 )

The opinion of the court was delivered by

Valentine, J.:

It is admitted in this case that both the justice of the peace and the district court had jurisdiction of the persons of both the plaintiff and the defendant, but it is claimed by the defendant that neither the justice of the peace nor the district court had jurisdiction of the subject-matter of the action. It is claimed by the defendant that this action is one in equity for an accounting between former partners and for a settlement of their partnership affairs, and that it is an action of which a justice of the peace cannot in any oase take jurisdiction. And it is further claimed that as the case went to the district court on an appeal from a justice of the peace, and that as nothing was done by the defendant in either court to enlarge the jurisdiction of the justice of the peace, or to give to the district court any other or further jurisdiction than that possessed by the justice of the peace, the district court did not and could not take any other than appellate jurisdiction, and did not and could not take jurisdiction of any matter or thing except such as had previously been within the actual jurisdiction of the justice of the peace; and as the justice of the peace did not have and could not take jurisdiction of the subject-matter of this action, the district court did not have and could not take jurisdiction of the same.

We are inclined to think that the claim of the defendant is correct. The jurisdiction of justices of the peace with respect to the subject-matter of civil actions is defined by § 2 of the justices act; and while there are eleven subdivisions of that section defining justices’ jurisdiction with respect to various matters, yet there is not one of such subdivisions that includes an action like the present. Justices of the peace get the principal portion of their civil jurisdiction from the first subdivision, which gives to them-jurisdiction of civil actions “for the recovery of money only, and to try and determine the same, where the amount claimed does not exceed $300.” Now this case is not an action for the recovery of “money only;” and it can hardly be said that it is an action for the recovery of money at all. See the prayer of the plaintiff’s bill of particulars. Mr. Swan, in his treatise for Justices, clearly enunciates the doctrine that justices of the peace have no jurisdiction at all in matters which are cognizable only by courts of equitable jurisdiction. (Swan’s Treatise, ch. 2, § 6.) And what Mr. Swan says we think is substantially correct. Of course justices of the peace may exercise all the jurisdiction given to them by the statutes, and in doing so may often apply equitable rules of jurisprudence. But what we wish to say is that justices of the peace do not have general equitable jurisdiction, or jurisdiction of cases of a purely equitable character. Indeed, there are many cases of mixed law and equity of which they could not take jurisdiction. They could not take jurisdiction of a case for the foreclosure of a mortgage, for they could not make the proper order with regard to the mortgaged property. Neither can they take jurisdiction of a suit in equity for an accounting between partners and for the settlement of the partnership affairs; for they could not make the proper order nor render the proper judgment with respect to the property still belonging to the partnership or the debts still due to the partnership, or the debts still owing to the partnership. We do not think that the justice of the peace in the present case had any jurisdiction to hear and determine the case, and we do not think that the defendant did anything in the case to give to the district court any higher or further or greater jurisdiction than that previously possessed by the justice of the peace. This case comes nearer being controlled by the decision of this court made in the case of Wagstaff v. Challiss, 31 Kas. 212, than it does in the decision made in the case of Shuster v. Finan, 19 Kas. 114. The plaintiff also cites the cases of Miller v. Bogart, 19 Kas. 117; Hodgin v. Barton, 23 id. 740; Gregg v. Garverick, 33 id. 190; and a few others, but we do not think that any one of them supports his view.

In our opinion the decision of the court below was correct, and its judgment will be affirmed.

All the Justices concurring.