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King v. Scala

Decided: February 15, 1933.

LESTER W. KING, HAROLD W. KING AND FRANCIS QUIGLEY, INDIVIDUALLY AND TRADING AS KING AUTO FINANCE COMPANY, PLAINTIFFS-RESPONDENTS,
v.
AMEDEO SCALA, DEFENDANT-APPELLANT



On appeal from the District Court of New Brunswick.

For the plaintiffs-respondents, Matthew Krafte.

For the defendant-appellant, Matthew F. Melko.

Before Justices Trenchard, Case and Brogan.

Case

The opinion of the court was delivered by

CASE, J. This appeal is from a judgment of possession rendered by the New Brunswick District Court, the judge sitting without a jury, in favor of the plaintiffs and against the defendant in a replevin suit concerning two automobiles.

Appellant's single point is that the value of the replevined chattels was in excess of $500 and that therefore the District Court had no jurisdiction. The respondents make two points

in reply, first, that the court obtained jurisdiction upon the filing of the affidavit of value required by the one hundred and twenty-third section of the District Court act, and, second, that if the defendant was at all entitled to attack the jurisdiction of the court, he was under the necessity of doing so by a special appearance and upon notice to have the writ dismissed on the ground of lack of jurisdiction before the entering of a general appearance and participation in the trial of the case. There was no entering of a general appearance except to the extent that that was accomplished by participating in the trial, and the trial, so-called, was really not a trial of the plaintiffs' case but, as will hereinafter appear, was, in so far as the defendant was concerned, an admission of the plaintiffs' proofs and an effort to prove that the value of the goods was above the jurisdictional limit of the District Court.

The appeal comes up on an agreed state of the case which discloses that: on the issuing of the writ an affidavit was filed setting forth the value of the two automobiles at $350 and $150, respectively; after the cars were seized a redelivery bond was given by the defendant in the sum of $2,000; a state of demand was filed in course; at the hearing the plaintiffs proved the facts upon which they relied for right of possession and the defendant admitted the truth of all of the testimony so introduced; defendant's attorney endeavored to cross-examine plaintiff as to the value of the replevined cars but the questions were, on plaintiffs' objection, overruled; the only proof adduced by the defendant was that the value of the two cars was between $750 and $1,000; there was no contradictory testimony; defendant then moved for a dismissal on the ground that the testimony showed that the value of the automobiles exceeded the jurisdictional amount of the District Court. Decision was reserved. Later the court gave plaintiffs judgment "for possession and $5.46 costs of suit."

The authority of the District Court to entertain replevin suits is in section 118 of the District Court act (2 Comp. Stat., p. 1947; Pamph. L. 1898, p. 603), which provides that "* * * writs of replevin may issue out of any District Court,

* * * where the value of the goods or chattels of which replevin is sought does not exceed the jurisdiction of the court." The jurisdiction of the court, as fixed by section 30, embraces "every suit * * * where the * * * matter in dispute does not exceed, exclusive of costs, the sum or value of five hundred dollars." It follows that a replevin action directed against goods ...


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