McDonald v. Dickens ( 1877 )

Warner, Chief Justice.

This was a certiorari from a justice court. It appears from the record that McDonald sued Dickens and wife on a promissory note and lien. The defendants pleaded payment and set-off, and asked for a judgment against McDonald for $68.50. When the eertiorari came on to be heard in the superior court, the plaintiff’s counsel made a motion to dismiss it on the ground that the amount claimed by the defendants as a set-off was more than fifty dollars, and, therefore, an appeal was the proper remedy, and not certiorari, there being questions of fact involved in the case. The court overruled the motion to dismiss, and allowed the defendants to write off from the amount claimed by them as a set-off the sum of $20.50, so as to bring it under $50.00, to which ruling of the court the plaintiff excepted.

"When the amount claimed in a suit in a justice’s court is over fifty dollars, and either party is dissatisfied with the judgment rendered therein, the remedy is by an appeal to the superior court, and not by certiorari, especially when questions of fact are involved, or mixed questions of law and fact, which require the verdict of a jury to determine upon the evidence, under the charge of the court as to the law applicable thereto. Code, §4157. It is not competent for either party, when the case is in the superior court, to write off from his claim or demand, an amount sufficient to reduce it below fifty dollars, for the purpose of giving that court jurisdiction of the case by certiorari. If the superior court did not have jurisdiction under the law, to bring the case before it by cen-'tiorari for the purpose of deciding it, neither party could confer that jurisdiction by reducing the amount of his claim in that court. In view of the facts disclosed in the record, the court erred in overruling the plaintiff’s motion to dismiss the certiorari.

Let the judgment of the court below be reversed.