Opinion
Opinion filed January 17, 1942.
1. DISCOVERY.
In action for cash surrender values of life insurance policies, plaintiff, going to trial without discovery, sought by her petition to require defendant to state such values, and accepting values stated in plea in abatement previously filed, "waived" petition for discovery, which was not served on defendant nor answered (Code 1932, secs. 9872, 9874).
2. COURTS.
The circuit court's statutory jurisdiction of suit to recover debt or demand on contract over $50 does not depend on result of case, but on amount of debt or demand constituting foundation of suit (Code 1932, sec. 10323).
3. COURTS.
In suit on contract, if debt or demand set forth in declaration exceeds $50, circuit court prima facie has jurisdiction (Code 1932, sec. 10323).
4. ABATEMENT AND REVIVAL.
In circuit court suit on contract, if value of debt or demand is less than $50, though averred in declaration to be over such sum, plea in abatement to court's jurisdiction will lie (Code 1932, sec. 10323).
5. ABATEMENT AND REVIVAL.
In circuit court action for cash surrender values of certain life insurance policies issued by defendant, where plaintiff confessed, in her petition for discovery of such values, that sum of $150 sued for was mere estimate of amount due, and conceded that $24.28, averred in defendant's plea in abatement for want of pecuniary jurisdiction to be cash surrender value of policies, was amount due, court erred in overruling such plea and entering judgment for plaintiff in such amount, as circuit court had no jurisdiction of case even under statute dealing with such court's general powers and jurisdiction (Code 1932, secs. 10318, 10323).
FROM DAVIDSON.Error to Circuit Court of Davidson County. — HON.E.F. LANGFORD, Judge.
Action by Willie Hudson Bradley against the Metropolitan Life Insurance Company for the cash surrender value of certain life insurance policies. Judgment for plaintiff, and defendant brings error. Reversed and suit dismissed.
MOORE EWING, of Nashville, for plaintiff in error.
JOSEPH L. LACKEY, of Nashville, for defendant in error.
This is an action brought by Willie Hudson Bradley against the Metropolitan Life Insurance Company in the Circuit Court of Davidson County to recover $150, the alleged cash surrender value on certain policies of life insurance issued by the Company on her life.
The Company filed a plea in abatement to the summons and declaration wherein it set forth that the cash surrender value of the policies mentioned in the summons and declaration was $24.28 and averred that the court did not have original jurisdiction of the suit because the amount involved was less than $50.
The trial judge overruled the plea in abatement and, on the hearing, the plaintiff, accepting the averments of the plea as to the amount due him as true, a judgment was pronounced in his favor for $24.28.
There is present in the record a petition for discovery, filed by plaintiff, averring, in substance, that the amount set out in the declaration ($150) as due her was based upon estimation alone, and praying that the Company be required to answer and state the cash surrender values of the policies in question. This petition was filed on January 6, 1940, which was subsequent to the date on which the plea in abatement was filed, but counsel for plaintiff asserts in his brief that the petition was lodged with the clerks of the court on September 18, 1939, which was prior to the coming in of the plea in abatement. The record contains no order to answer the petition, as required by Code, section 9872, nor does it appear that copy of the petition was served on the Company, as required by Code, section 9874. No answer to the petition was filed. By going to trial without the discovery sought and by accepting the cash surrender values as set forth in the plea in abatement, plaintiff waived her petition for discovery.
The circuit court has jurisdiction of all suits to recover debts or demands on contract over fifty dollars. Code, section 10323. The jurisdiction of the court does not depend upon the result of the case, but on the amount of the "debt or demand" constituting the foundation of the suit. Wagstaff v. Braden, 60 Tenn. (1 Baxt.), 304; Malone v. Dean, 77 Tenn. (9 Lea), 336. If the debt or demand set forth in the declaration exceeds fifty dollars, the court prima facie has jurisdiction. Spurlock v. Fulks, 31 Tenn. (1 Swan), 289; Brimingham v. Tapscott, 51 Tenn. (4 Heisk.), 382. If the value of the debt or demand is less than fifty dollars, although averred in the declaration to be over fifty dollars, a plea in abatement to the jurisdiction of the court will lie. Martin v. Carter, 9 Tenn. (1 Yerg.), 489; Jordan v. Barry, 5 Tenn. (4 Hayw.), 102. In Covington v. Neilson, 14 Tenn. (6 Yerg.), 475, PECK, J., said, "It is always presumable that the sum in dispute is as well known to the defendant as to the plaintiff. If, therefore, the defendant knows the action is brought for a sum under the jurisdiction of the court, no matter what may be the sum laid in the writ and declaration, he has the right to put the question of jurisdiction in issue by a plea in abatement, resting the point upon the sum in dispute." See, also, Gibson's Suits in Chancery, section 249; Tennessee Procedure in Law Cases, section 125.
The sum of $150 sued for in the instant case was, as confessed by plaintiff in her petition for discovery, a mere estimate of the amount due on the cash surrender values of the policies in question. The defendant, by its plea in abatement, averred that the true amount of the debt or demand sued for was $24.28. Plaintiff conceded that this was the amount due.
Plaintiff invokes section 10318 of the Code, as conferring jurisdiction of this case upon the circuit court. That section deals with the general powers and jurisdiction of the circuit court, but in no way modifies the provisions of section 10323.
Under the statute and the cases cited herein, the court was in error in overruling the plea in abatement and in entering judgment for plaintiff. The result is that the judgment of the trial court is reversed and the suit dismissed. Plaintiff will pay all the costs of the case.