Martin v. Grover , 9 Neb. 263 ( 1879 )

Maxwell, Ch. J.

On the 28th day of July, 1877, the defendant in error commenced an action against the plaintiff in error in the county court of Sarpy county, to recover the sum of $50. On the trial of the cause, he recovered a judgment for the sum of $15 and costs. The plaintiff appealed to the district court, where, on the 18th day of March, 1878, after a considerable amount of costs had been incurred, he offered to confess judgment in favor of the' defendant for the sum of $15, which offer was accepted, and judgment was thereupon rendered against the plaintiff herein for $15 and costs amounting to the sum of $ — . No motion was made in the court below to re-tax the costs. The plaintiff brings the cause into this court by petition in error.

The only question involved is the taxation of costs to the plaintiff.

Section 621 of the code provides that “If it shall appear that a justice of the peace has jurisdiction of an action, and the same has been brought in any other court, the plaintiff shall not recover costs.” Gen. Stat., 686.

In Geere v. Sweet, 2 Neb., 67, this question was before this court, and it was held that where, at the commencement of an action, a justice of the peace has jurisdiction, either concurrent or exclusive, and the plaintiff brings his action in any other court, he cannot recover costs.

In Beach v. Cramer, 5 Neb., 98, the question was again before the court. In that ’case the plaintiff brought an action against the defendant in the probate court of Lancaster county to recover the sum of $250, and on the trial of the cause recovered the sum of $20, which judgment, on appeal to the district court, was affirmed. The only question in that case was, whether ■the increased jurisdiction of the probate coux-t, giving it concurrent jurisdiction with the district court in sums exceeding $100 and not exceeding $500, constituted it as to that class of eases a distinct court from that merely exercising the powers axxd duties of justices of the peace. And it was held that it did — that the design of the law was to abolish not only fictitious issues but fictitious claims; and the case of Geere v. Sweet was approved and adhered to.

In Ray v. Mason, 6 Neb., 102, Geere v. Sweet and Beach v. Cramer are cited with approval.

Section 2 of “An act concerning the organization, powers, and jurisdiction of probate courts,” approved March 3,1873, Gen. Stat., 263, provides that: “ Probate courts in their respective counties shall have and exercise the ordinary powers and jurisdiction of a justice of the peace, and shall have concurrent jurisdiction with the district court in all civil cases in any sum not exceeding $500.”

Section 11 provides that: “ In actions before said court, where the amount claimed exceeds $100, motions and demurrers shall be allowed, and the rules and practice concerning pleadings and process in the district court shall be applicable, so far as may be, to pleadings in the probate court.”

Section 8 provides that: “ In all civil actions commenced in said courts, wherein the sum exceeds $100, it shall be the duty of the probate judge to issue summons returnable on the first day of the next term of the court, if there be ten days intervening between the issuance of the summons and the first day of the next term,” etc.

Section 7 provides for holding a regular term on the first Monday of each calendar month.

Under the new constitution the county courts are the successors of the probate courts. It will be seen that county judges have the ordinary powers and jurisdiction of a justice of the peace, and also jurisdiction in courts to be held on the first Monday of each month, for the trial of causes where the sum exceeds $100 but does not exceed $500. It appears from the transcript that the action was commenced on the 28th day of July, 1877, and the summons issued of that date, and made returnable on the 3d day of August of that year. So that there was no attempt made to bring the action under the increased jurisdiction, and the case is one wherein the county judge was exercising the ordinary powers and duties of justices of the peace. The question has already been determined by this court at this term.'

In Blaco v. Haller, ante p. 149 the court say: “ County courts are the successors of our former probate courts, upon which was expressly conferred, by the act of March 3,1877, concerning probate courts, “ the ordinary powers and jurisdiction of a justice of the peace in civil cases.” This being the case, the action was properly brought in a court exercising the ordinary powers and jurisdiction of a justice of the peace. The judgment is therefore affirmed.

Judgment aeeirmed.