versy does not exceed one hundred dollars; and it has been held that a court whose jurisdiction is limited to cases where the debt or damages demanded does not exceed a certain sum has jurisdiction of a case in which the ad damnum is for that sum, although a larger one is alleged in the complaint."*

In a suit for damages to personal property it is the amount of damages claimed in the complaint that fixes the jurisdiction, and not the verdict or amount of damages proved.95 So in determining the jurisdiction in an action for trespass to real estate, it is the amount claimed in the summons, and not the damage shown, which must govern.98 In an action for the wrongful conversion of personal property, the amount demanded determines the jurisdiction, although the value of the property converted and the money expended in the pursuit of it, separately considered, do not either of them equal the jurisdictional amount.

98

In actions on bonds, it is the amount of damages claimed, and not the penalty named in the bond, which determines the jurisdiction, the penalty being considered in the nature of a mere collateral security.97 Where a plaintiff's demand consists of several distinct items, it is the aggregate of the items which constitutes the sum demanded and confers jurisdiction; and it is immaterial that such sum is made up of several demands acquired by assignment.99 It does not follow, however, that distinct and different demands against several defendants, although based upon promises contained in the same instrument, may be aggregated in order to confer jurisdiction.100 Thus in a suit to foreclose several mechanics' liens, where the demand of each claimant is less than three hundred dollars, and the equity jurisdiction to enforce them fails, the superior court has no jurisdiction to render a personal judgment against the owners of the land. Such judgment must be several, and not joint; and the several demands cannot be cumulated for the purpose of jurisdiction.101 In the case of an action to enforce the statutory liability of the stockholders of a corporation, a court has no jurisdiction of an action

93 Wilhelms v. Noble Bros., 36 Ga. 599.

94 Hapgood v. Doherty, 8 Gray, 373. 95 Velvin v. Hall, 78 Ga. 136. 96 Stewart v. Baltimore etc. R. R. Co., 33 W. Va. 88, 10 S. E. 26.

97 Fowler v. McDaniel, 6 Heisk. 529.

P. P. F. Vol. I-37

98 Moore v. Nowell, 94 N. C. 266.

99 Stanley v. Albany County, 15 Fed. 483, 21 Blatchf. 249; Martin v. Goode, 111 N. C. 288, 32 Am. St. Rep. 799, 16 S. E. 232.

100 Thomas v. Anderson, 58 Cal. 99. 101 Miller v. Carlisle, 127 Cal. 327, 59 Pac. 785.

to recover such liability where the several amounts sued for are less than the jurisdictional amount, notwithstanding the aggregate indebtedness of the corporation sued upon exceeds that sum.1

102

As a general rule, it may be stated that, in the absence of express statutory provision, interest accruing after the commencement of suit may be calculated in determining the amount in controversy.103 But where the amount necessary to give a particular court jurisdiction is fixed by statute or constitutional provision, "exclusive of interest," interest forms no part of the amount in controversy; and it is therefore immaterial that the amount of the claim including interest may exceed the amount fixed by statute.104 And a constitutional provision limiting the jurisdiction of a superior court to "cases in which the demand exclusive of interest amounts to three hundred dollars," excludes all compound as well as simple interest from the demand.105

The only limitation or exception to the rule that the ad damnum clause determines the jurisdiction of the court is that the demand made must be made in good faith. Thus the prayer of a complaint is not conclusive of the jurisdiction of a particular court, if the record shows on its face that the dispute concerning an amount within the jurisdiction of that court is feigned and not real.106 If items are fraudulently included in a complaint for the purpose of giving a court jurisdiction to which it is not entitled, the question can only be raised by proper averments. presenting that issue. 107 But where the case admits of reasonable doubt as to whether the amount in controversy is within the jurisdiction, and where the plaintiff might have had reasonable grounds to believe that he could recover a sum within the jurisdiction, the suit will not be dismissed, as all presumptions in a doubtful case should be in favor of the jurisdiction.108 So where the claim made in a complaint is sufficient to give jurisdiction to

102 Derby v. Stevens, 64 Cal. 237, 30 Pac. 820; Hyman v. Coleman, 82 Cal. 650, 16 Am. St. Rep. 178, 23 Pac. 62; Myers v. Sierra Val. etc. Assoc., 122 Cal. 672, 55 Pac. 689.

103 Malson v. Vaughn, 23 Cal. 61; Skillman v. Lachman, 23 Cal. 198, 83 Am. Dec. 96; Denver Brick Mfg. Co. v. McAllister, 6 Colo. 326.

104 Cal. Const., art. vi. § 5; Christian v. Superior Court, 122 Cal. 117,

54 Pac. 518; Gallagher v. McGraw, 132 Cal. 601, 64 Pac. 1080; Nelson v. Ladd, 4 S. Dak. 1, 54 N. W. 809.

105 Christian v. Superior Court, 122 Cal. 117, 54 Pac. 518.

106 Lehnhardt v. Jennings, 119 Cal. .92, 48 Pac. 56, 51 Pac. 195.

107 Tiball v. Eichoff, 66 Tex. 58, 17 S. W. 263.

108 Dwyer v. Bassett, 63 Tex. 274.

the superior court, and deduction is made by plaintiff's counsel when the case is called for trial, on account of discovered errors in the account, reducing the plaintiff's demand below the jurisdictional amount, although such admission is binding upon the plaintiff, it cannot affect the jurisdiction of the court to try the case.109

As a corollary to the rule just stated, it is well settled that although the jurisdiction of a court may be limited to a certain sum, and the original indebtedness sued upon exceeds that amount, still the jurisdiction of the court is not ousted if the original sum has been reduced below the jurisdictional limit by bona fide credits.110 So, also, a plaintiff may remit a portion of the amount really claimed to be due in order to confer jurisdiction, provided this is not done with a fraudulent intent.111

Of course, it follows that a defendant's counterclaim to an action must be within the jurisdiction of the court in which the plaintiff's action is brought; in other words, it must be for an amount for which he, as plaintiff, could have sued in the same court.112

§ 978. In justices' courts.-The burden is upon one relying upon a judgment of a justice of the peace to show affirmatively that the justice had jurisdiction.113 If the summons was served outside the county, the plaintiff is bound to show that there was a certificate of the county clerk attached to it, to the effect that the person issuing it was an acting justice of the peace in that county; that is, the one relying upon such judgment must show that the summons was properly issued and served.114

If the justice has not jurisdiction to part of the action, on account of its being equitable in nature, he may still proceed with that part which is legal.115 A justice of the peace has no jurisdiction to sit for another justice without the written request of such justice.116 Though a defendant may have the case trans

109 Rodley v. Curry, 120 Cal. 541, 52 Pac. 999.

110 Dillard v. Noel, 2 Ark. 449. 111 Hempler v. Schneider, 17 Mo. 258; Burden v. Hornsby, 50 Mo. 238; Hill v. Wilkinson, 25 Neb. 103, 41 N. W. 134; Litchfield v. Daniels, 1 Colo. 268.

112 Griswold v. Pieratt, 110 Cal. 259, 42 Pac. 820; Malson v. Vaughn, 23 Cal. 61.

113 Ferguson v. Basin Cons. Mines, 152 Cal. 712, 93 Pac. 867; Harlan v. Gladding, 7 Cal. App. 49, 93 Pac. 400.

114 Ferguson v. Basin Cons. Mines, 152 Cal. 712, 93 Pac. 867.

115 Anderson v. Red Metal Min. Co., 36 Mont. 312, 93 Pac. 44.

116 Harlan v. Gladding etc. Co., 7 Cal. App. 49, 93 Pac. 400.

ferred to the next nearest justice, by consenting to its being sent to a distant justice, jurisdiction is conferred upon such justice.117 Justices' courts have only such powers as are conferred upon them by statute, which statute must be liberally construed, but a justice of the peace may lose his jurisdiction by taking a case under advisement, without specifying time or place fór rendering judgment, and rendering judgment more than a month thereafter.118 But he does not lose jurisdiction of the person, once it is obtained, until the case is finally disposed of.119 Nor does he lose jurisdiction by being absent on the day set for trial, if the attorneys stipulate for trial at a later date.120

A justice of the peace must have jurisdiction of both the person and the subject-matter; the one is conferred by law, and the other by service of summons or general appearance.121 Justices of the peace constitute, as a rule, one distinct class of judicial officers under the constitution.122

§ 979. Justice court-Presumption of jurisdiction.-Courts of justices of the peace are courts of special jurisdiction, and no presumption lies in favor of their jurisdiction, until jurisdiction has once attached, when it is presumed as to all subsequent proceedings. 123

§ 980. Justice court-Actions affecting real property. The parties cannot give evidence in, and the justice court cannot try. an action which involves the title or right of possession of real property;124 and if such an issue is raised by the pleadings, the fact that the answer is not verified does not change the rule.125 The California code provides that justices' courts shall have concurrent jurisdiction with the superior courts, within their respective townships, in actions of forcible entry and detainer, where the rental value is not in excess of twenty-five dollars, and the whole amount of damages claimed not more than two hundred

117 Squires v. Curtain, 42 Colo. 51, 93 Pac. 1106.

118 State v. Houston, 36 Mont. 178, 92 Pac. 476; Mont. Rev. Codes, §§ 6286, 7084.

119 Presley v. Dean, 10 Idaho, 375, 79 Pac. 71.

120 Hobbs v. German-American Doctors, 14 Okla. 236, 78 Pac. 356.

121 Hobbs v. German-American Doctors, 14 Okla. 236, 78 Pac. 356. 122 Love v. Liddle, 26 Utah, 62, Pac. 185, 62 L. R. A. 482.

72

Assur.

123 Rhyne V. Manchester Co., 14 Okla. 555, 78 Pac. 558. 124 Cal. Code Civ. Proc., § 838. 125 King v. Kutner-Goldstein Co., 135 Cal. 65, 67 Pac. 10.

dollars;1 ;126 and this is to be construed to include both actions of forcible entry and unlawful detainer, though such actions are separately defined.127 An unnecessary allegation of ownership, not denied in the answer, does not oust the justice of jurisdiction,128

§ 981. Justice court - Amount in controversy. - Under some statutes the justice cannot allow interest upon the amount due, prior to judgment, if the amount will exceed the statutory limitation;120 and if the claim is for money, or for certain property which is valued at more than the statutory limit, a remission of the excess of the money claimed over the statutory amount allowable in such courts will not validate the jurisdiction after judgment is made for the return of the property.130 Nor can plaintiff remit a portion of his demand, after suit is instituted, to bring it within the jurisdictional limit.131 A judgment of a justice of the peace for replevin of property of value in excess of three hundred dollars is invalid.182

Where a sheriff makes a wrongful levy on the property of a person not named in the execution, and takes several articles at different places on the same day, and as part of the same levy, including all in one return, it constitutes but one cause of action and cannot be split up in order to bring several suits in the justice court, instead of one suit in the higher court.133

126 Cal. Code Civ. Proc., § 113. 127 Cal. Code Civ. Proc., §§ 1160, 1161; Ivory v. Brown, 137 Cal. 603, 70 Pac. 657.

128 Heiney v. Heiney, 43 Or. 577, 73 Pac. 1038.

129 Or. B. & C. Codes, § 926. 130 Ferguson v. Byers, 40 Or. 468, 67 Pac. 1115, 69 Pac. 32.

131 Brown v. Braun, 9 Ariz. 254, 80 Pac. 323.

132 Robinson v. Bonjour, 16 Colo. App. 458, 66 Pac. 451; Oppenheimer v. Regan, 32 Mont. 110, 79 Pac. 695. 133 Hesser v. Johnson, 13 Okla. 747, 76 Pac. 181.