Worden v. Brown

E. Darwin Smith, Justice.

The plaintiff claims to recover costs in this action on the ground that the suit was necessarily brought in this court.

Section 304 of the Code gives costs of course to the plaintiff upon a recovery—1st. In actions for the recovery of real property, or when a claim of title to real estate comes in question. 2d. In an action to recover possession of personal property. 3d. In actions of which, according to § 54, a court of a justice ofjhe peace has no jurisdiction. 4th. In actions for the recovery of money, when the recovery is $50, or more.

But in actions of assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation or seduction, if the plaintiff recover less than $50, he shall recover no more costs than damages.

This case does not come within the specification of this last subdivision, or within either of the other subdivisions, unless it may be the third. That subdivision gives costs in all cases'where the justices of the peace have no jurisdiction under § 54.

Section 54 is as follows:—" But no justice of the peace shall have cognizance of a civil action—

“ 1st. In which the people of this state are a party, except for penalties not exceeding $100.

“ 2d. Nor where the title to real property shall come in question, as provided in §§ 55 to 62 inclusive. ,

3. Nor of a civil action for an assault and battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction.

“4. Nor of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed $400.

“ 5. Nor of an action against an executor or administrator, as such.”

Clearly this action does not come within any of the specifications of this section. But it is claimed, by counsel for the plaintiff, that §§ 53 and 54 are to be construed together, to show what jurisdiction is possessed by justices of the peace; and as it is clear that this action could not, within the jurisdiction conferred in these two sections, have been brought in a justice’s court, that the equity of the provision in § 304 in respect to costs, where the justice has not jurisdiction, applies, and that costs should therefore be allowed.

Section 53 confers and defines the jurisdiction of justices of the peace. It specifies in nine subdivisions the particular cases in which justices of the peace shall have jurisdiction.

As the courts of justices of the peace are courts of special and limited jurisdiction, they can exercise no jurisdiction except where it is distinctly and expressly conferred.

The specifications or subdivisions of this section 53 confer no authority upon a justice of the peace to try an action for a false return. Discarding, as the codifiers did, the common-law names of actions, they were driven to the necessity of specifying distinctly the causes of action of which justices of the peace should have jurisdiction, and have omitted quite a class in which they formerly had jurisdiction, under the comprehensive description of actions on the case.

The causes of action, of which justices may take jurisdiction, are very explicitly defined or specified in this section, and there are no general words, or terms, like trespass, assumpsit, or trespass on the case, within which other causes of action may be embraced.

Justices of the peace clearly have no jurisdiction of such an action as this. But there is no general provision giving costs in cases where justices of the peace have not jurisdiction. The provision in § 304 is all the provision in the Code on the subject, and that is expressly limited to the causes of action specified in § 54, and cannot be extended.

Costs must be expressly given by some statute, to be recovered.

The plaintiff could only sue in this court, but the legislature has made no provision for costs in such a case, unless the party recovers $50. The case was, doubtless, overlooked by the codifiers. It is a casus omissusj but the legislature alone can supply the remedy.

The plaintiff, not having recovered $50, cannot recover costs, but is liable to pay costs to the defendant, under § 305 of the Code.

The decision of the clerk allowing costs to the plaintiff must be reversed, and the clerk must adjust the defendant’s bill, and insert the sum in the judgment.

Neither party to have costs upon this appeal, as it is a new question, and it is not usual to give costs in this class of motions.