Gambar halaman

the case of Kendall v. Bishop, 76 Mich. 634, to overrule Coots v. Padford, 47 Mich. 37. The instrument considered in Ken. vill v. Bishop, 76 Mich. 634, was not intended by the parties tu it as an assignment under the statute. It was held to be an assignment by construction merely. No attempt had been made by the parties to comply with the statutory requireinents concerning assignments by giving a bond, or in any other respect, and although the decision was not put upon the ground that an attachment would lie against the property because the statutory requirements concerning assignments had not been complied with, still, that fact was in the case, and must have had its weight in determining the result.

It was said in Beard v. Clippert, 63 Mich. 719, that “a creditor of the assignors, after the time given by the statute to file the bond has expired, has two remedies open to him. He may proceed upon the equity side of the court to have the trust carried out through the intervention of a receiver and the supervisory powers of a court of chancery, or he may, if no other creditor invokes the aid of chancery, proceed to enforce his claim against the property of his debtor by levy of attachment or execution, as if the attempted assignment had not been made. He is not obliged, because an attempted assignment has been made, but fails utterly for want of the filing of the required bond, to proceed to enforce the trusts of the assignment in a court of equity."

It is said that the language here used was obiter, but nevertheless it states the doctrine which was applied in the case of Kendall v. Bishop, 76 Mich. 634.

It must be declared as the settled law of this state that an assignment for the benefit of creditors, when fully perfected, cannot be set aside at the suit of an attachment or execution creditor, by proof of unlawful preferences, or of “any fraud in the matter of such assignment." Relief against such a fraud is ample, under sections 6 and 11 of the act, but when given, it will be for the benefit of all concerned as creditors. To declare an assignment void on the ground that it gives a preference to A, so that B may obtain a like preference by at tachment, is not what the statute contemplated, if all its provisions be read together. This is not saying that such a construction of the statute is without difficulty. The apparent inconsistencies of the various provisions have been considered in former cases, and the effort has been in each case 40 to harmonize them as to secure, if possible, the beneficial results intended to be accomplished, viz., an equal distribution of an insolvent estate among creditors: Fuller v. Hasbrouck, 46 Mich. 78; Munson V. Euis, 68 Mich. 331.

The judgment must be affirmed, with costs.

ASSIGNMENT FOR THE BExerrT OF CREDITORS. — As to when an assiga. ment for the benefit of creditors is not vitiated by fraud, see note to Hemp Head v. Johnston, 65 Am. Dec. 473, 474.

Fix v. Sissung.


ration made in bad faith, alleging an excessive value for the purpose of maintaining a suit in the circuit court which should properly be brought in a justice's court because of the amount involved, is a fraud on the court, and will be dismissed on motion for want of jurisdiction. Gouverneur Morris and I. G. Humphrey, for the appellant. George M. Landon, for the respondent.

CHAMPLIN, C. J. The defendant found a flock of twenty geese belonging to the plaintiff, who was a neighbor, trespassing upon his field, and shut them up, and sent word to plaintiff that he must pay damages. Plaintiff tendered one dollar for damages, and demanded the geese. Defendant refused to accept one dollar, but wanted five dollars for damages, and twenty-five cents for feeding the geese. Thereupon the plaintiff sued out a writ of replevin in the circuit court for the county of Monroe, stating in his affidavit that the geese had been distrained or impounded, and were unlawfully detained. The sheriff executed the writ, and returned that he had replevied froin the defendant four old geese and fifteen young ones, and one young goose was not found. The total lot replevied were appraised at $8.80.

Before pleading, the defendant moved to dismiss the writ and set aside the proceedings, for the reason, among others, that the court had no jurisdiction. Two grounds were asserted as the basis of this motion: 1. That" geese were not within the statute authorizing the distraining and impounding of “beasts”; 2. The appraised value of the property showed that the court had no jurisdiction.

The motion was resisted, and the court denied it, for the reason that it was at that time premature. Upon the second

point, he held that the plaintiff was not precluded by the appraisal, but might allege in the declaration, and prove upon the trial, that the value of the property exceeded one hundred dollars. The plaintiff's counsel would not admit the value of the property to be less than one hundred dollars, but exhibited a declaration which he proposed to, and afterwards did, file, alleging the value at two hundred dollars. Upon the first point, the court said he thought it clear that geese did not come within the general statutes regulating distress, impounding, and replevin of “beasts"; but as sections 673 and 2869, Howell's Statutes, provide that villages and townships may make regulations respecting the restraining and impounding of animals, including geese, he would be obliged to await the development of the proofs upon the trial; but if the plaintiff should fail to bring himself within the statute, he should feel it his duty to dismiss the case for want of jurisdiction, and permit the plaintiff to proceed at his peril. Upon the trial, no such proof was attempted, and plaintiff offered no proof as to the value of his geese, and strenuously opposed the introduction of evidence, by the defendant, of their value. Such evidence was admitted by the court, and showed the value of the property replevied to be nine dollars.

It is now claimed that the circuit court had jurisdiction, because the plaintiff alleges the value to be two hundred dollars. The claim is unjustifiable. The facts show that the value alleged in the declaration was made in bad faith, and was a fraud upon the court. Section 18 of article 6 of the constitution confers upon justices of the peace exclusive jurisdiction in civil cases to the aniount of one hundred dollars. While values of property depend, in a large measure, upon opinion, and this court, when the value is near the limit, will not declare in all cases a want of jurisdiction, if in good faith the declaration alleges the value within the jurisdiction of the circuit court, nevertheless it will not hold that jurisdiction is obtained when the fraud upon the court is apparent, as it is in this case. The circuit court had no jurisdiction of the subject-matter nor the process.

The court was right in dismissing the case, with costs, and the judgment is affirmed, with costs.

JURISDICTION AS TO VALUES, HOW DETERMINED. - The constitutions or statutes of the different states usually provide that the jurisdiction of cer. tain courts shall extend only to cases where the amount in litigation shall exceed or shall not exceed a certain sum. Generally speaking, it is the


amount of the plaintiff's claim, as shown by his complaint or by the summons, which determines the court's jurisdiction. It is almost universally maintained that the amount claimed by the plaintiff in the ad dumnun clause of his declaration, petition, or complaint, or that named in the sum. mons, determines the question of the jurisdiction of a court to entertain an original proceeding, and not the value of the property involved in the controversy, as esta!lished by the evidence at the trial, nor the amount found by the jury or finally recovered. This rule is equally applicable to actions com. menced in inferior or superior courts, at law or in equity, in actions ex contractu or ex delicto. From the host of authorities in which this doctrine has been sustained, the following may be cited: Skinner v. Bai'ey, 7 Conn. 496; Peter v. Schlosser, 81 Pa. St. 439; Scott v. Moore, 41 Vt. 205; 98 Ain. Dec. 581; Vineyard v. Lynch, 86 Mo. 684; Giles v. Spinks, 64 Ga. 205; Ashurlo Bank v. Pearson, 14 Gray, 521; Inhabitants of Township No. 11 v. l'eir, 9 Ind. 224; Pate v. Shafer, 19 Ind. 173; Gaurd v. Circie, 16 Ind. 401; Culley v. Lny'rook. 8 Ind. 285; Lafferty v. Day, 7 Ark. 258; Cole v. Hayra, 78 Me. 539; McVey v. Johnson, 75 sowa, 165; Cavender v. Ward, 28 S. C. 470; Derby v. Stevens, 64 Cal. 287; Pennybecker v. McDougal, 48 Cal. 160; Solomon v. Reese, 34 Cal. 28; Cilley v. Van Patten, 68 Mich. 80; Miles v. Couch

4 J. J. Marsh. 242; Singleton v. Madison, 1 Bibb, 342; Abney, Love, it Co. v. Whitted, 28 La. Ann. 818; Tyler Cotton Press Co. v. Cheraier, 56 Ga. 494; Block v. Fontenot, 35 La. Ann. 965; Zuberbier v. Morse, 36 La. Aun. 970; Little v. State, 75 Tex. 616; McQuade v. O'Neil, 15 Gray, 53; Clay v. Barlow, 123 Mass. 378; Merrill v. Butler, 18 Mich. 294; Stephen v. Eiseman, 54 Miss. 535; Fenn v. Harrington, 54 Miss. 733.

As illustrations of these principles, it may be said that jurisdiction in replevin attrches according to the claim made in the affidavit: Chilson v. Jennison, 60 Mich. 235. Where the plaintiff in his declaration claimed one hun. dred dollars, the mere fact that the copy note attached to the declaration and the note itself was for more than that amount is no ground for arresting the judgment: Wilhelms v. Noble Brothers & Co., 36 Ga. 599. And a court whose jurisdiction is limited to cases where the delit or damages demanded do not exceed a certain sum has jurisdiction of a case in which the ad dam. num is for that sum, although a larger one is alleged in the declaration: Hapgood v. Doherty, 8 Gray, 373. In a suit for damages to personal property, it is the amount of damages laid in the summons, or the declaration attached thereto, that fixes the jurisdiction, and not the verdict or amount of damages proved: Velvin v. Hall, 78 Ga. 136.

In McVey v. Johnson, 75 Iowa, 165, the court said: “The question of jurisdiction depends upon whether the amount in controversy is determined by the allegation as to the sum actually due or that sought to be recovered. We think the latter should determine the question. The amount claimed necessarily limits the amount of the recovery. If one sues in a court of com. petent jurisdiction to recover damages for the loss of a horse, alleging its value to be $150, but claiming to recover damages only to the amount of $125, he might recover that amount or any suin less than that, but could not recover

The amount in controversy in that case would be the sum Damed, and the present case does not differ in principle from that. It is the amount in controversy, and not the items or matters out of which the claim arises, which coufers or defeats jurisiliction, and that is to be determined by the Bum which may be recovered in the action.”

In determining the jurisdiction in an action for trespass to real estate, it is the amount claimed in the suminons, and not the damage shown, which must


govern: Stewart v. Baltimore etc. R. R. Co., 33 W. Va 88; - it is the snm. mods in justicos' courts, like the writ in courts of record, that must be looked to to determine the plaintiff's claim upon the question of jurisdiction: Todd

. Gates, 20 W. Va 464. In all actions sounding in damages, tho amount Damed in the declaration, and not that found by the court or jury, determines the jurisdiction: Murphy v. Howard, 1 Hemp. 205. In a suit for damages for the breach of an official bond, the amount of damages claimed, and not the amount of the penalty in the bond, determines the jurisdiction: Forler v. McDaniel, 6 Heisk. 529. So it is the value of property as alleged in a replevin suit, and not its value as found, that determines this question as between different courts: Sterens v. Chase, 61 N. H. 340; Higgins v. Deloach, 54 Miss. 498; Kirkpatrick v. Cooper, 89 Ill. 210.

Where plaintiff's demand consists of several distinct items, it is the aggregate wbich constitutes the sum demanded, and confers jurisdiction: Moore v. Nowell, 94 N. C. 266. And the actual value of the thing demanded determines the jurisdiction, and not the price last paid for it: Oakey v. Aiken, 12 La Ann, 11.

The amount in controversy as fixing the jurisdiction of the court has further been determined as follows: In attachment proceedings, the amount of the judgment and costs, and not the value of the property attached: Hoppe v. Byers, 39 Iowa, 573; Paul v. Arnold, 12 Ind. 197; in actions for torts generally, the amount of damages claimed, and not the amount of damages suffered: Linduff v. Steubenville etc. Co., 14 Ohio St. 336; De Camp v. Miller, 44 N. J. L. 617; Cooke v. Woodrown, 5 Cranch, 13; in an action on a bond, the sum claimed, and not the penalty in the bond: United States v. McDowell, 4 Cranch, 316; Brown v. Shannon, 20 How. 55. On the trial of an indictment for larceny, it is the value of the property as alleged in the indictment that determines the jurisdiction as between different courts: State v. Church, 8 Iowa, 252.

The only limitation or exception to the principles set forth is, that the demand for the sum made must be made in good faith: Moore v. Nowell, 94 N. C. 266. If it appears that the plaintiff erroneously and frau,lulently stated his case in order to give the court jurisdiction, judginent shoull not be rendered in his favor, but his suit should be dismissed: Wiseman v. With. erow, 90 N. C. 140; Griffin v. McDaniel, 63 Miss. 121; Fenn v. Harrington, 51 Miss. 733; Griffin v. Lower, 37 Miss. 458; Paul v. Burton, 32 Vt. 153; Fill v. Randall, 51 Vt. 33. The rule has been thus stated: “Jurisiliction, so far as matter or amount in value is concerned, must be deterinineil by the prition, and the question is concluded by its averments in so far as they relate facts in relation to the thing in controversy, unless it otherwise appears that an attempt has been made to confer jurisdiction by averments i:nproperly and fraudulently made. In actions sounding in damages, the a'nount of damages claimed, and not the ainount of the verdict, determines jurisdiction. In actions ex contractu, the amount claimed determines juris. diction, if it is not made to appear that a fraud upon jurisdiction has been attempted by improper averments in the petition ": Dwyer v. Bussrul. 63 Tex. 274; Ratigan v. Holloway, 69 Tex. 468; Tidball v. Eichoff, 66 Tex. 58; Bridge v. Ballero, 11 Tex. 269; Turbox v. Kennon, 3 Tex. 7; Sherwood v. Doulhit, 6 Tex. 224.

If items are fraudulently included in a petition for the purpose of giving a certain court jurisdiction to which it is not entitled, the question can only be raised by proper averments presenting that insie: Dwyer v. Bassett, 63 Tex. 275; Tidball v. Eichoff, 66 Tex. 58.

« SebelumnyaLanjutkan »