Dewey v. Hyde , 1 Pin. 469 ( 1844 )

Miller, J.

This suit was brought by Oliver M. Hyde against Qharles O. Dewey before a justice of the peace of Milwaukee county in assumpsit. The plaintiff declared informally before the justice, on an account for $44 and interest, the price of a stove sold in March, 1840. The justice rendered judgment against the defendant for $44 and costs — from which the defendant appealed to the district court of said county, where the cause was tried, at the last June term of said court, and a verdict and judgment were rendered according to the claim of the plaintiff, for $56. The question of jurisdiction was not raised in the district court, or the judgment would there have been arrested. It was raised for the first time, by the assignment of error and in the argument of the cause, in this court. Upon the principle, that whenever want of jurisdiction is made to appear at any stage of the cause, it is the duty of the court to dismiss the case from its consideration, we have examined the point and find it to be thus: The plaintiff claimed $44 and interest, the price of a stove sold and delivered in March, 1840, at the special instance and request of the defendant. The proof returned with the record, sustains this claim. The summons was issued by the justice in February, 1843, when, including the interest, the amount claimed was about $53. There is no question but that the legal interest on a demand composes part of the amount claimed, and is properly to be taken into the computation, upon the consideration of this question of jurisdiction. That the justice rendered judgment for the principal only, is no answer to the objection. The jury allowed interest according to the claim filed and declared upon, and according to the proof. The plaintiff showed himself out of the jurisdiction of the justice, as clearly as in the case of Barker v. Baxter, ante. The court will therefore direct that the judgment of the district court of Milwaukee county be reversed, with a mandate to said court to arrest any further judgment or proceeding in said cause.

Judgment reversed accordingly.