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Opinion of the Court by

Judge Carroll

Reversing.

Tbe only question in tbis case is tbis: Has a justice of tbe peace jurisdiction to give judgment for tbe plaintiff on a claim witbin bis jurisdiction after tbe defendant bas filed a counterclaim or set-off exceeding tbe jurisdiction of justices of tbe peace and moved to transfer tbe case to a court having jurisdiction of tbe set-off or counterclaim?

Section 720 of tbe Civil Code, wbicb is a part of tbe chapter relating to tbe practice in and jurisdiction of inferior courts, including justices’ courts, provides that “A set-off or counterclaim, though exceeding, in amount, ♦.the jurisdiction of tbe court, may be used to bar and ex*458tinguish. the demand of the plaintiff; but no judgment shall be rendered in favor of the defendant for the excess, unless such excess be within the limits of the court’s jurisdiction as to amount. The judgment shall ascertain the amount due to the plaintiff and give him a credit therefor on the claim used as a set-off or counterclaim: Provided, That when the amount of the counterclaim or set-off exceeds the jurisdiction of the court trying the cause,, the court shall, on motion of either party to the action, or by their attorneys, transfer the cause to the court having jurisdiction.”

In the case we have the appellee, Blanton, sued the appellant, Grullett, in a court of justice of the peace on a claim amounting to one hundred dollars. Grullett, as defendant to this suit, filed an answer in which he set up a counterclaim amounting to one hundred and twenty-five dollars, and moved the justice to transfer the case to a court having jurisdiction of the same. Blanton objected to the transfer and the motion was overruled by the justice, who proceeded to hear and determine the controversy and give judgment against Grullett for the amount of Blanton’s claim.

After this an execution issued on the judgment and Grullett, proceeding upon the theory that the judgment was void, brought this suit in the circuit court to enjoin the collection of the execution. The circuit court sustained a demurrer to the pétition, and thereupon it was dismissed and this appeal prosecuted.

It is conceded by counsel for appellee that the ruling of the justice in refusing to transfer the ease and in giving judgment was erroneous, but it is insisted that it was not void. If the judgment was merely erroneous and not void, this suit to enjoin the collection of the execution could not be maintained, and so the question is, did the justice have jurisdiction to render a judgment in the case after a motion to transfer had been made? If he did not have jurisdiction, his judgment was void for want of jurisdiction; Black on Judgments, Yol. 1, Sec. 240. If he did have jurisdiction, it was merely erroneous.

A void judgment may be attacked and proceedings under it enjoined in any court having jurisdiction of the subject matter of the action, and if the judgment was void, the circuit court in which this suit was filed to enjoin proceedings under it, had jurisdiction to do so; *459Robinson v. Carlton, 123 Ky., 419; Willis v. Tomes, 141 Ky., 431.

Tbe jurisdiction of justices’ courts is limited by Sec. 1086 of tbe Kentucky Statutes to “actions and proceedings for tbe recovery of money or personal property in civil cases, where tbe matter in controversy, exclusive of interest and costs, does not exceed one hundred dollars,” and as tbe counterclaim assorted amounted to one hundred and twenty-five dollars, it is of course apparent that the amount in controversy on tbe counterclaim exceeded tbe jurisdiction of tbe court.

It will be observed that tbe first paragraph of Sec. 720 provides that a set-off or counterclaim may be filed exceeding tbe jurisdiction of tbe court, for tbe purpose of extinguishing tbe demand sued on, but that no judgment can be rendered on tbe counterclaim in excess of tbe jurisdiction of tbe court; but in 1893 tbe section was amended by a-dding to it tbe words contained in tbe last paragraph providing that when tbe amount of tbe counterclaim or set-off exceeds tbe jurisdiction, tbe court, on motion, should transfer tbe action to a court having jurisdiction.

It was manifestly tbe purpose of this amendment to divest a justice’s court of jurisdiction of tbe entire action when a counterclaim or set-off was filed asserting a claim in excess of tbe jurisdiction of tbe court, accompanied by a motion to transfer tbe action, and we think this section should be so construed. Before tbe amendment a defendant who bad a valid set-off or counterclaim exceeding tbe jurisdiction of tbe court could only avail himself of so much of it as was within tbe jurisdiction of tbe court for tbe purpose of defeating tbe claim of tbe plaintiff, and be must then resort to a new action to recover tbe balance due on bis counterclaim, thus making necessary two suits when tbe matter in controversy could have been settled in one in a court having jurisdiction, and it was to remedy this condition that tbe section was. amended. Under tbe section as it now reads tbe amount in controversy is to be determined not alone by tbe amount of tbe plaintiff’s claim, because in no event would tbe court have jurisdiction of a suit on bis claim if it exceeded tbe statutory amount. It is to be determined by tbe amount sought to be recovered in tbe set-off or counterclaim, and if tbe amount sought to be recovered in tbe set-off or counterclaim exceeds tbe jurisdiction, and a *460motion is made to transfer, the conrt cannot proceed to hear and determine the case, as the amount in controversy exceeds the jurisdiction of the court and the action should be transferred.

If, however, the defendant files a set-off or counterclaim exceeding the jurisdiction of the court, and neither of the parties see proper to move to transfer, the court may proceed with the case and give judgment according to the rights of the parties for an amount not exceeding its jurisdiction. Under the Code provision a motion to transfer is necessary to divest the court of jurisdiction. If this motion is not made, the parties will be treated as consenting that only so much of the set-off or counterclaim as may be necessary to extinguish the plaintiff’s debt or as is within the jurisdiction of the court shall be available, or in other words, as only presenting a set-off or counterclaim within the jurisdiction of the court.

Having this view of the matter, we think the judgment in the justice’s court was void, and that the circuit court should have enjoined the collection of the execution issued thereunder.

Wherefore, the judgment is reversed, with directions to proceed in conformity with this opinion.

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