
    Levinson v. The Sun Outfitting Co.
    (Decided April 11, 1932.)
    
      Messrs. Cohen, Mach & Hurtig, for plaintiff in error.
    
      Mr. Simeon M. Johnson, Mr. Frederic W. Johnson and Mr. D. B. Tate, for defendant in error.
   Hamilton, J.

This case arose in the municipal court of Cincinnati. The Sun Outfitting Company, defendant in error here, brought suit against Herman Levinson, plaintiff in error here, on an account for merchandise. The amount claimed was $81, with interest.

Levinson filed a statement of defense and a cross-bill of particulars, in which he admitted the account, but in his cross-bill of particulars by way of set-off asked allowance of a claim under a contract for services, He claimed in the cross-bill that he was employed by Tbe Sun Outfitting Company as a salesman, and that under the terms of the contract he was to receive one dollar for every customer whose account was opened by him and 20 per cent, of the gross sales made by him. He claims that he earned under this contract $2,510, on which he had been paid only the sum of $1,310, leaving a balance due him of $1,200. He waives in his cross-bill all of the amount in excess of $1,000, and prays for judgment for $1,000, “with interest from February 28, 1927, and for his costs.”

No reply was filed to the answer and cross-bill, nor is one required in the municipal court.

On trial of the case the court rendered judgment for the sum of $1,094.70 in favor of Levinson. This judgment was for the sum of $1,000, with interest from February 28, 1927, to date of judgment, less the claim of The Sun Outfitting Company, amounting to $98.20.

The outfitting company prosecuted error from this judgment to the court of common pleas. The court of common pleas reversed the judgment of the municipal court, on the ground that the municipal court had no jurisdiction to entertain the defendant’s cross-bill of particulars and the set-off, for the reason that the amount claimed was in excess of $1,000, and, since The Sun Outfitting Company’s account was admitted, it rendered judgment in favor of the outfitting company for the amount of its account, as set forth in the bill of particulars. From that judgment, Levinson prosecutes error to this court.

The petition in error presents several specifications of error, but the main question argued here concerns the construction of paragraph 2 of Section 1558-6, General Code of Ohio, which is as follows: “In all actions and proceedings for the recovery of money or personal property of which the court of common pleas has, or may be given jurisdiction, when the amount claimed by any party, or the alleged value of the personal property sought to be recovered, does not exceed one thousand ($1,000) dollars, and in such actions judgment may be rendered for over one thous- and ($1,000) dollars when the amount over one thous- and ($1,000) dollars shall consist of interest or damages, or court costs accrued after the commencement of the action.”

It is argued by plaintiff in error that the proper construction of this paragraph is that the language, “and in such actions judgment may be rendered for over one thousand ($1,000) dollars when the amount over one thousand ($1,000) dollars shall consist of interest or damages, or court costs accrued after the commencement of the action,” authorizes the suit for the amount of $1,000, with interest accruing prior to the commencement of the action; that the words “accrued after the commencement of the action” have reference to court costs only.

The contention of the defendant in error is that the words “accrued after the commencement of the action” refer to interest, damages, and court costs, and, therefore, the attempt to collect interest accruing prior to the commencement of the action, in addition to the $1,000, deprived the municipal court of jurisdiction.

We are of opinion that the “interest and damages” refer to interest and damages accruing after the commencement of the action. This construction is borne out by the fact that to limit the wprds “accrued after the commencement of the action” to “court costs” would be mere surplusage, or without sense, since there could be no court costs accrue until after the .commencement of the action.

Therefore, as to the proper construction to be placed on paragraph 2 of Section 1558-6, General Code, the court of common pleas was correct in holding that the section refers to interest accruing after the commencement of the action.

However, the cross-bill of particulars recites that there was a balance of $1,200 due to Levinson, and then follows this waiver: “Defendant waives the excess amount over One Thousand ($1,000) Dollars.” This waiver gave the municipal court jurisdiction.

Nothing is said concerning interest except in the prayer, wherein defendant asks for interest from February 28, 1927, which was from a date approximately some three years preceding the filing of the suit.

It is the law that the prayer is no part of the petition or cross-petition. The waiver expressly waives all in excess of $1,000. The fact that he prayed for more than he was entitled to would not change the cause of action or the waiver, which is expressly limited to $1,000, of which amount the municipal court has jurisdiction. While the court could not give judgment for the amount asked, it could give a proper judgment up to the amount of $1,000 under the waiver. The trial court erred in its finding on the cross-bill in excess of $1,000.

We have studied the transcript and are of the opinion that the judgment is manifestly against the weight of the evidence, and the court of common pleas should have reversed the cause on that ground.

The conclusion is that the court of common pleas erred in entering judgment in favor of The Sun Outfitting Company. It should have remanded the case to the municipal court for a new trial.

The judgment of the court of common pleas entering judgment for the plaintiff in error in that court is reversed, and the cause is remanded to the court of common pleas with instructions to remand the case to the municipal court 'of Cincinnati for a new trial and for further proceedings according to law.

Judgment reversed and cause remanded.

Ross, P. J., and Cushing, J., concur.  