
    McGrath v. McGrath.
    (Decided January 29, 1934.)
    
      
      Messrs. Weiser & Weimer, for plaintiff in error.
    
      Miss Marie 8. Schaffter, for defendant in error.
   Funk, J.

Defendant in error, Sally H. McGrath, sued the plaintiff in error, Carlos S. McGrath, in the Common Pleas Court of Wayne county for $25,000 damages for the alleged alienation of the affections of her husband. The parties will be referred to as plaintiff and defendant,- as they stood in the trial court.

The jury returned a verdict for plaintiff, Sally H. McGrath, against the defendant for $1, on which judgment was entered, including costs. Defendant then filed a motion to retax costs, which the court overruled ; to which ruling the defendant excepted and filed his petition in error in this court.

The sole question presented to this court is whether the plaintiff is entitled to recover her costs, or whether each party must pay his or her own costs. A determination of this question depends upon whether or not the taxing of costs should be governed by Section 11625, General Code, or by Section 11624, General Code.

Section 11625, General Code, reads:

“If it appears that a justice of the peace has jurisdiction of an action brought in any other court and the judgment is less than one hundred dollars, unless the recovery be reduced below that sum by counterclaim or set-off, each party shall pay his own costs.”

Section 11624, General Code, provides in part:

“When not otherwise provided by statute, costs shall be allowed, of course, to the plaintiff upon a judgment in his favor in actions for the recovery of money only or of specific real or personal property.”

If the taxing of costs should be governed by the latter section, plaintiff is entitled to recover the amount of the judgment, and all the costs.

Two questions are thus presented: First, does the amount claimed in the petition or the amount of the recovery control in determining whether a justice of. the peace has jurisdiction of the action, as affecting the taxing of costs under said Section 11625, General Code? Second, even though the amount of the judgment should be controlling in the taxing of costs, in actions of which a justice of the peace has jurisdiction in sums not exceeding $300, under Section 11625, General Code, do justices of the peace have jurisdiction to try actions for the alienation of affections of a spouse where the amounts claimed do not exceed $300?

Counsel for defendant claim, first, that the jurisdiction of the Common Pleas Court to try such cases depends upon the amount claimed in the petition, and that if the amount be less than $100 that court has no jurisdiction, but that if the amount claimed in the petition be more than $100 the jurisdiction of that court to try the case is not ousted, even though the recovery be less than $100; further, that if the plaintiff recovers less than $100, although entitled to judgment therefor, he is not entitled to a judgment for his own costs, because of the contrary provisions of Section 11625, General Code, and, second, that as Section 10226, General Code, gives justices of the peace exclusive jurisdiction in civil cases “under the restrictions and limitations provided in this chapter” in sums not exceeding $100, and concurrent jurisdiction with the Common Pleas Court in sums over $100, and not exceeding $300, and as Section 10232 in said chapter provides that “justices shall not have cognizance of” certain specified actions, and that as an action for damages for “alienation of affections” is a civil action, and is not mentioned in said Section 10232 as one of the actions of which a justice of the peace shall not have cognizance, the conclusion must be that justices have jurisdiction in such actions where the amount claimed does not exceed $300, and that therefore each party must pay his or her own costs.

First, Does the amount claimed in the petition or the amount of the recovery control as to costs?

It seems to be well settled, and the recognized rule in this state, that the amount claimed in the petition, or in the bill of particulars in the justice of the peace court, controls the jurisdiction of the court for the purpose of the trial. 11 Ohio Jurisprudence, “Courts”, Section 42, page 681; Jenney v. Gray, 5 Ohio St., 45; Linduff v. S. & R. Plankroad Co., 14 Ohio St., 336.

It is also equally well settled that the amount of the recovery is controlling, under Section 11625, on the question of taxing costs. 11 Ohio Jurisprudence, “Costs”, Section 35, page 35; Linduff v. S. & R. Plankroad Co., supra.

We therefore hold that, the judgment in this ease having been for less than $100, and it not being below that amount by reason of counterclaim or set-off, each party must pay his or her own costs, if a justice of the peace has jurisdiction to try an action for the alienation of affections of a spouse where the amount claimed does not exceed $300.

Second. This brings us to the question whether a justice of the peace has such jurisdiction.

Counsel for defendant seem to rely upon Sections 10226 and 10232, General Code, to support their contention. Section 10226 reads as follows:

“Under the restrictions and limitations provided in this chapter, justices of the peace shall have exclusive original jurisdiction in civil actions for the recovery of sums not exceeding one hundred dollars, and concurrent jurisdiction with the court of common pleas in sums over one hundred dollars, and not exceeding three hundred dollars.”

It will be observed that this section of the Code does not say of what civil cases a justice of the peace shall have jurisdiction, but simply fixes or limits the amounts within which justices shall have jurisdiction in civil cases of which the statute has given them jurisdiction under the restrictions and limitations of the chapter of which said Section 10226 is a part. Section 10232 in said chapter merely designates certain actions of which justices shall not have jurisdiction, and does not relate to the conferring of jurisdiction upon justices of the peace.

In this connection it must be borne in mind that it is thoroughly settled in Ohio that the civil jurisdiction of a justice of the peace is conferred only by statute, and that such statutes are strictly construed. 24 Ohio Jurisprudence, “Justices of the Peace”, Section 123, page 344; Klein v. Lust, 110 Ohio St., 197, at page 202, 143 N. E., 527; Harrington v. Heath, 15 Ohio, 483, at pages 485 and 486.

It is thus necessary to look elsewhere than to said two sections to ascertain the kind of actions of which a justice of the peace has jurisdiction.

Section 10225, General Code, subdivision 6, provides :

“In cases of trespass to real or personal property, the action may be brought in the township where the trespass was committed, or in the township where the trespasser, or one of the several trespassers, resides.”

Section 10231, General Code, provides in part:

“Justices shall have jurisdiction in actions in which the title to real estate may be drawn in question:
“1. In actions for trespass on real estate where , the damages demanded do not exceed one hundred dollars.”

There being no statute specifically providing for the amount for which an action for trespass to personal property may be brought before a justice of the peace, the amount as to personal property is controlled by Section 10226, General Code.

It is settled that a justice of the peace has jurisdiction for trespass upon the person of another, and for injuries to personal property, in an amount not exceeding $300. Brewing Co. v. Archer, 42 Ohio St., 213; Job v. Harlan, 13 Ohio St., 485; 24 Ohio Jurisprudence, “Justices of the Peace”, Sections 137, 138 and 139, pages 352 and 353.

In the case of Exline v. Sargent, 3 C. C. (N. S.), 66, 13 C. D., 180, it was held that a judgment for alienation of the affections of a wife was a judgment in an action “for willful and malicious injuries to the person or property of another.”

Under the common law forms of action the enticing away of a husband’s wife was an injury to the husband for which he was entitled to recover damages in an action on the case, and not in an action for trespass. 21 Ohio Jurisprudence, “Husband and Wife”, Section 281, page 566.

Under the Married Woman’s Act, in force in this state, a wife now has a right of action in such cases the same as the husband. Ibid, Section 273, page 560.

There is also a well-recognized rule that the alienation of the affections of a spouse is an injury to a personal right. 13 Ruling Case Law, “Husband and Wife”, Sections 511 and 512, pages 1463 and 1464.

The rule is well established that trespass has in law a well-ascertained and fixed, meaning, and refers to injuries which are immediate and not consequential, while trespass on the case refers only to injuries which are consequential, and the terms are thus clearly distinguishable. 1 Corpus Juris, “Actions”, Section 117, page 996; Roundtree v. Brantley, 34 Ala., 544, 73 Am. Dec., 470; Denney v. City of Everett, 46 Wash., 342, 89 P., 934; O’Neill v. San Pedro, Los Angeles & Salt Lake Rd. Co., 38 Utah, 475, 114 P., 127.

In the case of Harrington v. Heath, 15 Ohio, 483, the court, in construing what is now Section 10231, General Code, held that the justices’ act should be strictly construed, and that the most limited meaning should be given to the word “trespass” in said section, and that it therefore did not include actions upon the case for nuisance upon land. In commenting upon the subject, the court said:

“The words trespass and case both, in their ordinary and legal sense, have a different meaning; the word trespass applying to injuries resulting from direct force, and case to such as are consequential.”

See, also, Nichol v. Patterson, 4 Ohio, 200.

The distinction between the words referred to is still recognized by our courts. Buehrer v. Provident Mutual Life Ins. Co., 123 Ohio St., 264, at pages 269 and 270, 175 N. E., 25.

"While the common law forms of pleading have been abolished by statute, and we now have but one form of action, known as a civil action, “This requirement does not affect any substantive right or liability, legal or equitable.” Section 11238, General Code.

It being clear that an action for trespass, properly so called, is distinguishable from trespass on the case, which is an action for injuries committed without force, and which is usually termed case, and as an alienation of affections is clearly recognized in the law as a personal injury not by direct force, but as a consequential injury, an action therefor comes clearly within the common law action of trespass on the case; and as the word “trespass” in the justices’ act has been construed narrowly by our courts so as not to include trespass on the case in reference to real estate, the word ‘trespass” should certainly be so construed in reference to personal property.

We therefore hold that a justice of the peace has no jurisdiction in an action for the alienation of affections of a spouse, regardless of the amount claimed. It necessarily follows that said Section 11625, General Code, does not govern in the taxing of costs in the instant case, and that the costs were properly taxed against the defendant, in accordance -with the provisions of Section 11624, General Code.

The judgment is therefore affirmed.

Judgment affirmed.

Washburn, P. J., and Stevens, J., concur.  