Opinion
6 Div. 511.
June 1, 1939.
Barber Barber, of Birmingham, for petitioner.
Where plaintiff files suit by complaint which shows on its face that the amount in controversy exceeds the jurisdiction of the trial court, plaintiff, upon reasonable and proper offer to remit all of his demand in excess of the court's jurisdiction, is entitled to his judgment to the limit of the court's jurisdiction or such less amount if proved. Central of Georgia R. Co. v. Williams, 163 Ala. 119, 50 So. 328; Webb v. McPherson Co., 142 Ala. 540, 38 So. 1009; Davis v. Bedsole, 69 Ala. 362; Wharton v. King, 69 Ala. 365; 2 Brickell's Dig. 175; Crabtree v. Cliatt, 22 Ala. 181; Henderson v. Plumb, 18 Ala. 74; King v. Dougherty, 2 Stew. 487; Herrin v. Buckelew, 37 Ala. 585; Deming's Adm'r v. Hamil, 38 Ala. 686; Solomon v. Ross, 49 Ala. 198; Code 1923, §§ 9512, 9513. Defendant waived the objection as to jurisdiction of the trial court by failing to make seasonable and proper objection thereto, and plaintiff might at any stage of the proceedings before judgment remit all in excess of the court's jurisdiction and have his judgment. Sheldon v. Lyon, 20 Ala. App. 623, 104 So. 576; Benson Paint Varnish Co. v. American Surety Co. of New York, 225 Ala. 353, 142 So. 767; Hart v. Turk, 15 Ala. 675; Rose v. Thompson, 17 Ala. 628.
Vassar L. Allen, of Birmingham, opposed.
This is an action of assumpsit on three promissory notes, originating in the "Intermediate Civil Court of Birmingham" established by Act No. 363, approved September 7, 1935, Local Acts 1935, pp. 219, 227.
Section 2 of said Act provides: "That the court hereby established shall be a Court of Record and have and exercise civil jurisdiction in all civil matters of which justices of the peace and inferior courts in lieu of justices of the peace have jurisdiction under the general laws of the state, concurrently with the several justices of the peace and inferior courts in Jefferson County, and, in addition thereto, the said court shall have jurisdiction concurrently with the circuit court in all civil cases where the amount in controversy exceeds the jurisdiction of justices of the peace but does not exceed the sum of Three Hundred Dollars ($300.00), but the court shall not have jurisdiction in such cases where the amount in controversy exceeds Three Hundred Dollars, nor of actions of libel, slander, assault and battery, ejectment or actions in the nature of ejectment." Loc. Acts 1935, pp. 219, 220. [Italics supplied.]
The complaint filed in the inferior court claimed two hundred and sixty dollars, together with interest thereon due from the defendants on said three notes, and then averred: "And plaintiff further says that as a part of the consideration of each of said notes the defendants John Cassimus and Pete Derzis otherwise known as P. N. Derzis agreed to pay all costs of collecting said notes and in and about securing the same including a reasonable attorneys fee for collecting or attempting to collect or securing or attempting to secure said notes, which said reasonable attorneys fee the plaintiff claims in the sum of towit: One hundred dollars." [Italics supplied.]
The case remained on the docket for several months and was continued from time to time, and no objection to the court's jurisdiction was interposed by the defendants. On the day of the trial the plaintiff offered to file a remittitur of all sums claimed in excess of three hundred dollars, the inferior court refused to allow such remittitur filed, and ex mero motu dismissed the case for want of jurisdiction of the subject matter. The plaintiff thereupon filed a waiver of trial by jury and appeal to the circuit court, and appealed to the Court of Appeals, as authorized by the act creating said inferior court. — Local Acts 1935, p. 225, § 22. The Court of Appeals affirmed, and the plaintiff seeks review by certiorari:
"Since by the subject matter is meant the nature of the cause of action and of the relief sought jurisdiction thereof is acquired by the act creating the court." Woolf v. McGaugh, 175 Ala. 299, 57 So. 754.
Therefore the court had jurisdiction of the action of assumpsit brought on said notes, and we have uniformly held, "that, in an action of this nature * * * the plaintiff may before, or at the time of the rendition of judgment remit the excess of his demand over and above the sum for which the justice is authorized to render judgment, so as to bring the case within his jurisdiction." Davis v. Bedsole, 69 Ala. 362, 363, 364; Wharton v. King, 69 Ala. 365; 2 Brick. Dig. p. 175, § 17; Webb Stagg v. McPherson Co., 142 Ala. 540, 38 So. 1009; Central of Georgia Ry. Co. v. Williams, 163 Ala. 119, 50 So. 328.
The Court of Appeals, therefore, erred in affirming the judgment of said inferior civil court of Birmingham.
The certiorari is therefore granted, the judgment of the Court of Appeals is reversed and the cause remanded to that court with directions to reverse and remand the cause for further proceedings in said inferior court.
Writ of certiorari granted. Reversed and remanded.
All Justices concur.