
    Reed et al. v. Shum et al.
    1. Justice’s Court: judgment, through error, in excess oe jurisdiction : judgment not void. Where a note provided that a justice of the peace should have jurisdiction thereof to the extent of $300, and also stipulated that the maker should “pay all expenses of collection, including attorney’s fees,” and the note was filed with (he justice, but no petition was filed and no claim made for attorney’s fees, and the justice issued an original notice claiming the amount due on the note “and expenses of collection, including attorney’s fees,” and afterwards rendered judgment upon default, not only for the amount due and costs, but also for attorney’s fees, whereby the total judgment, excluding the ordinary costs, amounted to more than $300, held that the judgment for attorney’s fees was error, but that it did not defeat the jurisdiction, and that the judgment was valid to the extent of $300 and the ordinary costs.
    
      Appeal from Hamilton District Court.
    
    Thursday, April 24.
    This is an action in equity which involves the priority of the lien of a judgment of the plaintiffs, and a judgment of the intervenors, Lawrence & Dungan, upon certain real estate, the legal title to which is in Mary Shum. The court below found and decreed that the judgment of the plaintiffs- was the prior lien, and Lawrence & Dungan appeal.
    
      A. W. Carton and MoHett da Tisdale, for the appellants.
    
      Chase <& Chase, for the appellees.
   Rothrock, Ch. J.

It is conceded that the judgment of plaintiffs is the prior lien, if it is a valid judgment. Appellants claim that it is void, because the court which rendered the same had no jurisdiction of the subject matter. The judgment was rendered by a justice of the peace on a promissory note for $273.10, dated April 28, 1880, with interest at ten pier cent pier annum, and it was stipulated in the note that a justice of the peace “may have jurisdiction herein to the amount of $300.” Tbe note also stipulated tbat tbe maker should “pay all expenses of collection, including attorney’s fees.”

Tbe plaintiffs filed tbe note with tbe justice on May 3, 1880. Tbe record does not show tbat any petition was filed, and no claim was made, other than appeared from tbe face of the note. Tbe justice of tbe 'peace issued an original notice, in which it was stated tbat tbe plaintiffs claimed tbe sum of $273.10, with interest at ten per cent from April 28, 1880, “and expense of collection, including attorney’s fees.” Tbe defendant in tbe action made default, and tbe justice rendered a judgment for $274, together with twenty-seven dollars and forty cents attorney’s fees, and tbe costs of tbe action, taxed at four dollars and fifty cents.

Tbe amount of tbe debt and tbe attorney’s fees exceed $300, and, because of this excess, tbe defendants claim tbat tbe judgment is void. We think it is very plain that tbe position of tbe appellants cannot be sustained. Tbe plaintiffs did not demand a judgment in excess of $300. Tbe note itself limited tbe judgment to that amount. It was a mere error in tbe justice in taxing tbe fees so as to make tbe aggregate exceed $300. On tbe face of tbe record before him. tbe justice of tbe peace bad jurisdiction, and, jurisdiction having attached, it could not be defeated or ousted by mere error. Tbe plaintiffs offer to remit tbe excess, which amounts to one dollar and forty cents, and tbe judgment will be corrected to tbat extent, but without costs.

This disposition of the case renders it unnecessary tbat we should discuss tbe question presented by counsel as to whether attorney’s fees are part of the costs.

Akfirmkd.  