From Casetext: Smarter Legal Research

Rojas v. Kimble

Supreme Court of Arizona
Apr 19, 1961
89 Ariz. 276 (Ariz. 1961)

Summary

holding that where inferior court properly dismissed action for lack of jurisdiction, district court on appeal also lacked jurisdiction, even though case could have been brought under district court's original jurisdiction

Summary of this case from Cruz v. FTS Construction, Inc.

Opinion

No. 7175.

April 19, 1961.

Appeal from the Superior Court of Cochise County, William E. Kimble, J.

Ramon R. Alvarez, Douglas, for petitioners.

Ben F. Williams, Jr., Douglas, for respondent Public Finance Corp.


This action on a promissory note was commenced in the Justice Court of Precinct No. 2 of Cochise County by Public Finance Corporation, respondent herein. From a judgment of dismissal, respondent appealed to the Superior Court of Cochise County. From a judgment in favor of respondent, petitioners applied to this Court for certiorari asserting a jurisdictional question arising out of the following facts:

Public Finance Corporation, an Arizona corporation, sued on a note, the principal balance due being $180.30. The note provided in addition that if suit were brought, petitioners promised to pay a reasonable attorney's fee which was alleged to be $50. Accordingly, the demand was in the sum of $230.30, together with interest and costs. A verdict was directed in favor of the petitioners in the justice court on the theory that the amount involved was in excess of the jurisdiction of the justice court. On appeal to the superior court judgment was entered against petitioners over their timely objections reversing the judgment entered by the justice of the peace.

At the time of the decision in the court below by Art. 6, § 6 of the Constitution of Arizona, A.R.S., the jurisdiction of the superior court was fixed as original in all controversies amounting to $200 exclusive of interest and costs and as appellate in cases arising in justice courts. A.R.S. Sec. 22-201 provides that justices of the peace shall have exclusive jurisdiction of all civil actions where the amount involved, exclusive of interest and costs, is less than $200.

Petitioners in applying to this Court for certiorari urge that for the purpose of determining the jurisdiction of justice courts attorneys fees must be included in the amount in controversy. In Murphey v. Gray, 84 Ariz. 299, 327 P.2d 751, we held that where attorneys fees are allowed by statute that they are to be classed as costs. Hence in such instances they are excluded from calculation of the jurisdictional amount. It is otherwise where attorneys fees are based on an express promise contained in a promissory note. Where so provided they must be considered in determining the amount in controversy for jurisdictional purposes. Caperna v. Williams-Bauer Corporation, 185 Misc. 687, 57 N.Y.S.2d 254; Hinds v. Fine, 162 Kan. 328, 176 P.2d 847; Foster v. H.O. Wooten Grocer Company, Tex.Civ.App., 273 S.W.2d 461. And see 77 A.L.R. 991 and 167 A.L.R. 1247.

Under the authorities the test is whether there is an express promise providing for attorney's fees as in this case. Here the note provides that "* * * in the event an attorney is employed or suit is brought to collect this note, (promisors) agree to pay all costs of collection including a reasonable attorney's fee in addition to the unpaid balance." In a similar case it was specifically held that reasonable attorneys fees are not costs of an action. See J.F. Schneider Son v. Justice, 293 Ky. 126, 168 S.W.2d 591. Our conclusions are that if the plaintiff sues on the defendants' promise to pay and claims an amount of $200 or more, exclusive of interest and costs, the amount involved is not within the jurisdiction of the justice court.

A further issue involves the jurisdiction of the superior court to enter a judgment against petitioners. Respondent contends that even if the justice court was correct in dismissing the action the superior court having original jurisdiction in matters involving $200 or more could determine the case on appeal.

Art. 6, § 16 of the Arizona Constitution as amended (formerly Art. 6, § 6) fixes the appellate jurisdiction of superior courts as:

"Section 16. The superior court shall have appellate jurisdiction in cases arising in justice and other courts inferior to the superior court as may be provided by law."

A.R.S. § 22-261, subd. A. authorizes a party to a final judgment of a justice of the peace to appeal to the superior court where the judgment or the amount in controversy exceeds $20 exclusive of costs. Rule 80(c) Rules of Civil Procedure, 16 A.R.S., provides that upon appeal to the superior court from a justice court judgment, the case shall be tried de novo.

We have repeatedly held that a trial de novo means a new trial "as though it were one of original jurisdiction in the superior court." [ 59 Ariz. 36, 122 P.2d 218]. Schnatzmeyer v. Industrial Commission, 78 Ariz. 112, 276 P.2d 534; Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837; Cox v. Superior Court, 73 Ariz. 93, 237 P.2d 820; Lane v. Ferguson, 62 Ariz. 184, 156 P.2d 236; Duncan v. Mack, 59 Ariz. 36, 122 P.2d 215; Manning v. Perry, 48 Ariz. 425, 62 P.2d 693. From the above cases respondent seeks to interpret the language to mean that because the appeal is to be tried as though it were one of original jurisdiction, appellate jurisdiction is thereby enlarged to embrace its appeal.

We are unable to agree with respondent's interpretation. In Ex parte Coone, 67 Ariz. 299, 195 P.2d 149, 152 its position was explicitly repudiated:

"`* * * If the inferior court had no jurisdiction, an appeal from its decision gives the appellate court no jurisdiction, except to dismiss the prosecution for want of jurisdiction in the lower court, even though the appellate court would have had jurisdiction had the action originated therein, as its jurisdiction is predicated and dependent on the jurisdiction of the inferior court; and the fact that the case is tried de novo in the superior court does not enable that court to treat the action as though it had been commenced therein; * * *.'"

While a trial de novo means a new trial as though it were one of original jurisdiction in the superior court, this does not mean that the superior court may treat the action as though it had actually been commenced therein in order to escape jurisdictional limitation imposed by the Constitution or statutes. Jurisdictional limitations to hear and determine the case remain the same as were imposed upon the court from which the appeal arose. The appellate jurisdiction of the superior court may not be enlarged by pointing to that court's original jurisdiction which might have been invoked had the proceeding been initiated there. We point out again that jurisdiction may not be waived and can be raised at any stage of the proceedings. Estate of Baxter, 22 Ariz. 91, 194 P. 333.

Judgment reversed.

BERNSTEIN, V.C.J., and UDALL, JENNINGS and LOCKWOOD, JJ., concur.


Summaries of

Rojas v. Kimble

Supreme Court of Arizona
Apr 19, 1961
89 Ariz. 276 (Ariz. 1961)

holding that where inferior court properly dismissed action for lack of jurisdiction, district court on appeal also lacked jurisdiction, even though case could have been brought under district court's original jurisdiction

Summary of this case from Cruz v. FTS Construction, Inc.

In Rojas v. Kimble, 89 Ariz. 276, 361 P.2d 403 (1961), the Arizona Supreme Court was faced with the issue whether the language of A.R.S. section 22-201(B) providing for the exclusion of "interest and costs" required the exclusion of attorney's fees based on an express promise in the parties' agreement.

Summary of this case from Metro Collections v. Meggers

In Rojas, the supreme court distinguished Murphey's analysis regarding attorney's fees based on statute, and held that when attorney's fees are based on an express promise, they cannot be considered as "costs," but, rather, "must be considered in determining the amount in controversy for jurisdictional purposes."

Summary of this case from Metro Collections v. Meggers

In Rojas v. Kimble, 89 Ariz. 276, 361 P.2d 403 (1961), our supreme court discussed the constraints on de novo review to the superior court from the justice court.

Summary of this case from Department of Revenue v. Navopache Elec
Case details for

Rojas v. Kimble

Case Details

Full title:Gregorio ROJAS and Magdalena Rojas, husband and wife, Petitioners, v…

Court:Supreme Court of Arizona

Date published: Apr 19, 1961

Citations

89 Ariz. 276 (Ariz. 1961)
361 P.2d 403

Citing Cases

State Land Department v. Painted Desert Park, Inc.

" 95 Ariz. at 190-191, 388 P.2d at 239. In Rojas v. Kimble, 89 Ariz. 276, 361 P.2d 403 (1961), our Supreme…

State Land Department v. Painted Desert Park, Inc.

* * *" 95 Ariz. at 190, 191, 388 P.2d at 239. In Rojas v. Kimble, 89 Ariz. 276, 361 P.2d 403, we said: "While…