Sumner Lumber Company, a Corporation, Plaintiff in Error, v. George W. Mills, Defendant in Error, 64 Fla. 513

Whitfield, J. This action was brought in the Circuit Court for Marion County. The declaration alleges the killing of a cow by the engine-and cars of the defendant Lumber Company, and double damages were claimed under the statute, the railroad not being fenced. Damages, costs and attorneys fees were claims in the sum of five hundred dollars. There was judgment for the plaintiff in $100.00 as damages and $40.00 attorney’s fees.

On writ of error taken by the defendant it is contended that the Circuit Court did not have jurisdiction of the subject-matter, because “the demand or value of the property does not exceed $100.00,” which is the minimum limit of the trial jurisdiction of the Circuit Courts. The jurisdiction of courts is regulated by the constitution or by statutes enacted pursuant to the constitution. In cases of this character the jurisdiction of the court depends upon the amount or value of the demand in good faith made by the plaintiff.

If the double damages in good faith claimed cannot exceed one hundred dollars, the Circuit Court is without original jurisdiction of the cause, as justices of the peace and county judges have trial jurisdiction in this class of cases where “the demand or value of the property involved does not exceed $100.00.” The constitution expressly limits the exclusive original jurisdiction of Circuit Courts in actions at law to cases “not cognizable by inferior courts,” and the constitution and statutes do not give to' the Circuit Courts concurrent original jurisdiction with inferior courts in actions at law of this character.

See Seaboard Air Line Ry. Co. v. Maxey, decided at this term. Where it does not appear from the declaration, but the evidence shows, that the court is without jurisdiction of the cause of action stated, the court should dismiss the cause upon its attention being directed to the absence of jurisdiction as disclosed by the evidence.

The declaration in this case does not allege the value ’of the cow killed by the defendant’s train, but it referred to the demand for payment made upon the defendant under the statute, the failure to comply with which demand is the basis of the statutory claim for double ‘damages, and the plaintiff himself testified at the trial that the cow was worth “fifty dollars to him, if anything at all;” thereupon the defendant challenged the jurisdiction of the court, as it also did in a demurrer to the evidence and in a motion in arrest of judgment.

While one of the plaintiff’s witnesses testified in a general way as to the value of the cow, that “he judged its market value to be about fifty or sixty dollars,” the plaintiff himself testified that he demanded and claimed only fifty dollars for the value of the cow.

In this action, which is highly penal in its nature, to recover double damages as provided by statute, the claim presented under the statute for payment, and the testimony of the plaintiff at the trial as to his claim and as to the value of the cow, must be deemed to be the amount or value of the demand in good faith asserted; and that demand determines the jurisdiction of the court. The claim and demand made by the plaintiff himself being $50.00, as the value of the cow, double damages would be $100.00, which is not within the original jurisdiction of the Circuit Court.

This is not a case in which a bona fide demand for damages in excess of $100.00 is made and a recovery is had for an amount not exceeding one hundred dollars. In such a case the court would have jurisdiction even though the amount awarded is below the jurisdictional amount. The statute allows a reasonable attorney’s fee to be determined by the court and included in the costs assessed in the cause, and costs do not affect the jurisdiction of the court. Seaboard Air Line Ry. Co. v. Maxey, supra. The judgment is reversed. Taylor and Hocker, J. J., concur.