
    EVERETT constable, for use, etc., v. BROWN et al.
    
    
      A justice’s court has jurisdiction to try the issue made by a claim interposed to a levy upon personalty, under an execution issued therefrom.
    Submitted February 12,
    Decided March 13, 1903.
    Action on bond. Before Judge Evans. Washington superior court. May 10, 1902.
    An execution from a justice’s court, in favor of Stephens, executor, against Brown, was levied by Everett, constable, on certain household goods as the property of the defendant; and a forthcoming bond was given by the defendant. A claim to the property was interposed by the defendant’s wife, and on the day advertised for the sale under the levy he refused to deliver the property to the constable. On the trial of the claim case in the justice’s ■court, judgment was rendered in favor of the claimant. After-wards suit was brought on the forthcoming bond, and it was contended by the plaintiff that the justice’s court had no jurisdiction of the claim case, and, therefore, the judgment in favor of the claimant did not relieve the obligors in the forthcoming bond from liability for failure to produce the property at the time and place of sale. The judge, to whom the case was submitted on an •agreed statement of facts, for trial without a jury, ruled against this contention, and rendered judgment in favor of the defendants. Plaintiff excepted.
    
      E. W. Jordan, for plaintiff.
    
      Rawlings & Howard, for defendants.
   Fish, J.

This case presents but a single question for determination, viz.: has a justice’s court jurisdiction to try an issue made by a claim interposed to a levy upon personalty, under an execution issued from such court ? Our constitution (Civil Code, § 5856) provides: “ Justices of the peace shall have jurisdiction in all civil cases arising ex contractu, and in cases of injuries or damages to personal property, when the principal sum does not exceed one hundred dollars.” The contention of counsel for plaintiff in error is, that this provision of the constitution is exhaustive as to the jurisdiction of justices’ courts; that a claim is not a civil case arising ex contractu; and therefore that a justice’s court has no jurisdiction of a claim case. Prior to the constitution of 1868, giving jurisdiction to justices’ courts, “ in all civil cases where the principal sum claimed does not exceed one hundred dollars,” there was no constitutional restriction upon the jurisdiction of such courts in civil cases, but that subject was left to legislative control. The legislature, by the act of 1811 (Cobb’s Dig. 638), authorized justices’ courts to try claim cases, and since then they have continually exercised such jurisdiction, their authority to do so being expressly recognized in the Codes of 1863 and 1895, adopted by the legislature. The authority of such courts to try claim cases arising under levies of executions issued therefrom has been recognized for nearly a century, and for more than a quarter of a century since the adoption of the constitution of 1877. We do not, of course, seek to base our judgment upon legislative construction, or upon the long-established and hitherto unquestioned practice in this State; for we are clear that, even under the strictest construction of the provisions of the present constitution in relation to the jurisdiction of justices' courts, such a court has the power to try the issue raised by the interposition of a claim to personalty levied upon under an execution issued therefrom.

A claim is not an independent, original action, but a mere incident to the main casq, to enable the court to direct and control its own process; or, in the language of Mr. Justice Swayne, in Bank v. Turnbull, 83 U. S. 190, it is “merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation.” In that case it was held that a claim could not be removed from a court of the State of Virginia into the Federal courts, under the act of March 2,1867, authorizing, under certain conditions, the transfer of “suits” originating in the State courts. In his opinion the learned Justice, in discussing the character of a claim, said: “ The proceeding was necessarily instituted in the court where the judgment was rendered and whence the execution issued. No other court, according to the statute, could have taken jurisdiction. It was provided to enable the court to determine whether its process had, as was claimed, been misapplied, and what right and justice required, should be done touching the property in the hands of its officer. It was intended to enable the court, the plaintiff in the original action, and the claimant to reach the final and proper result by a process at once speedy, informal, and inexpensive. That it was only auxiliary and incidental to the original suit is, we think, too clear to require discussion.” See also cases cited in support of that decision. In Flash v. Dillon, 22 Fed. 1, a case involving a claim to property levied upon under an execution issued from a Texas State court, it was held “ that this proceeding was not such a ‘ suit ’ as could be removed into the Federal court unless the original suit had remained undetermined and was also removed with it.” In Hochstadter v. Harrison, 71 Ga. 21, it was held — two Justices presiding : “ A claim to property levied on under final process of a State court is not removable to the United States court. The claim is but an incident to the main proceeding, and can not be detached from it.” See also Harrison v. Shorter, 59 Ga. 512; Besser v. Munford, 63 Ga. 446.

Judgment affirmed.

By Jive Justices.  