amounts to about $27.50, make the "sum claimed" only $86.50, or is the sum claimed the principal and interest added, amounting to about $114? We are unable to discover any distinction between the case supposed and the present case. In either case, the sum claimed is that for which the plaintiffs claim judgment, exclusive of their costs. In a recent case in Kansas, (Ball v. Biggam, 23 Pac. Rep. 565,) decided in 1890, this question was very fully considered by the supreme court of that state. The action was brought before a justice of the peace. In the bill of particulars, which was filed on September 24, 1884, they asked for $300, and interest from September 14, 1884. The court in that case says: "The first question that confronts us is whether the justice of the peace had jurisdiction of the subject matter in controversy. Section 2, Chapter 81, Comp. Laws 1885, (Procedure Civil before Justices) provides: 'Under the limitations and restrictions herein provided, justices of the peace shall have original jurisdiction of civil actions-First, for the recovery of money only, and to try and determine the same, where the amount claimed does not exceed three hundred dollars. This section fixes the jurisdiction of the justice upon the amount claimed. In, this action the amount claimed over $300 was but a fraction of a dollar, but if we could exceed it 60 cents we might extend it $60. The language of the statute is imperative. It lays down an arbitrary rule. The line is drawn exactly at $300, and the courts have no authority to change or enlarge it." Our attention has been called to the case of Jackson v. Whitfield, 51 Miss. 202, and Hedgecock v. Davis, 64 N. C. 650, in which a different doctrine seems to be held. In the Mississippi case the decision seems to have been made mainly upon the peculiar terms of their constitution, which provides that "the jurisdiction of justices of the peace shall be limited to causes in which the principal of the amount in controversy shall not exceed the sum of one hundred and fifty dollars." It will thus be seen that that court was fully warranted under the clause, "in which the principal of the amount" was to determine the jurisdiction, in holding that the "principal" only controlled, and that interest was therefore us. excluded in determining the jurisdiction of the justice. In the North Carolina case much importance was attached to the fact that in a former provision of their statute the amount was limited to $100, exclusive of interest, and that in adopting the new system, doubling the amount, and making it $200, the legislature, in effect, said let it be doubled "enclusive of interest." Neither of these cases, therefore, is analogous to the one before But the Kansas case is directly in point, and expresses our views upon this question. We are of the opinion that the justice had no jurisdiction in this case, and the motion of defendant to dismiss the case should have been granted. It is strenuously contended, however, that, assuming that the justice had no jurisdiction to give a judgment for the full sum claimed, it was competent for the plaintiffs to remit the excess and take judgment for a sum within the justice's jurisdiction. But we cannot accede to this proposition. If the "sum claimed" was in excess of his jurisdiction, the justice had no jurisdiction of the case for any purpose. He had no authority to try it, nor authority to render any judgment in the case. Had the amount claimed been within his jurisdiction, and the justice had inadvertently or otherwise rendered a judgment for a sum in excess of his jurisdiction, the plaintiffs could have remitted the excess, and the judgment would have been good. The case principally relied on by counsel for plaintiffs to sustain their position is Brantley v. Finch (N. C.) 1 S. E. Rep. 535. But the learned counsel must have overlooked the fact that in that case the plaintiff did not claim a sum in excess of the justice's jurisdiction. The court in that case says: "We are of the opinion that the justice of the peace had jurísdiction. It is the sum demanded in the action or contract that determines the question in that respect. *** The plaintiff did not demand by the summons nor insist on the trial that the intestate of defendant in his lifetime owed him a greater sum than $200, and the justice of the peace had jurisdiction of that sum." In Barber v. Rose, 5 Hill, 76, cited by respondeuts, the court says: "There is no doubt of the plaintiff's right, when the damages found in his favor exceed the amount claimed in his declaration, to remit the excess and take judgment for the sum demanded." To the same effect are Clark v. Denure, 3 Denio. 319; Putnam v. Shelop, 12 Johns. 435; Burger v. Kortright, 4 Johns. 414,-cited by counsel for respondent. In Gillett v. Richards, 46 Ia. 652, the court says: "If the amount in controversy, as shown by the pleadings, exceed one hundred dollars, the justice was ousted of jurisdiction, and the rendition of a judgment for a less sum than one hundred dollars would not cure the defect or bring the cause within the jurisdiction of such justice. Much less, therefore, will the correction or modification of the judgment made by the circuit court have the effect to correct the wrong (if any) committed by the justice." We are of the opinion, therefore, that the attempt to cure the defect in the proceedings, by remitting the excess in the demand above $100, did not avail the plaintiffs. A party may, no doubt, reduce a claim to an amount within the jurisdiction of a justice's court by credits or otherwise, provided that it is done before the commencement of his suit and he claims a sum within the court's jurisdiction; but, when he claims a sum in excess of the jurisdiction of the justice court, the court has no authority to proceed. The judgment before the justice, being coram non judice, was void. The defendant, therefore, by answering in the justice court, and by appealing in the district court, waived no rights. The filing of an answer in the justice court or an appeal to the district court might be a waiver of jurisdiction as to the person, but not of the jurisdiction of the court over the subject-matter. Ball v. Biggam, (Kan ) 23 Pac. Rep. 565. Lastly, it is contended by the respondents' counsel that, as there was no motion for a new trial or bill of exceptions, the errors complained of cannot be reviewed by this court. But this contention is not tenable for the reason that the want of jurisdiction in the justice court appears from the summons and complaint, which constitute a part of the judgment roll in the case. The motions to dismiss for want of jurisdiction, made in the justice and district courts, which were overruled, and exceptions taken, also became a part of the judgment roll. See Section 5103, Comp. Laws. The appeal from the judgment brings up the whole record, not only of the district court, but of the justice court also, including the exceptions that have become a part of the record. The want of jurisdiction, therefore, clearly appears from the record, and no bill of exceptions or motion for a new trial was necessary to present the errors complained of in this court. The jurisdiction of the district court depended entirely upon the jurisdiction of the justice court. If that court had no jurisdiction, then the district court acquired none. The jurisdiction of the district court acquired by virtue of the appeal was simply that of the justice court. The original jurisdiction of the district court is not involved or called into exercise. If, then, the justice court had no jurisdiction, the district court acquired none. Kidder v. Fay, 60 Wis. 218, 18 N. W. Rep. 839; Cooban v. Bryant, 36 Wis. 605; Dillard v. Railroad Co., 58 Mo. 69; Taylor v. Smith, 64 Ill. 445; Ball v. Biggam, (Kan.) 23 Pac. Rep. 565. The judgment of the district (now circuit) court is reversed, and the court below is directed to dismiss the action. All the judges concurring. C. AULTMAN & Co. v. SIGLINGER, SHERIFF. 1. In determining the sufficiency of the complaint the averments therein can alone be considered. A complaint which does not state a cause of action by its averments, without reference to exhibits, is bad upon demurrer. KELLAM, P. J., dissenting. 2. The facts constituting the cause of action must be stated in the complaint with sufficient clearness and fullness to enable the court to see that, upon the facts stated, the plaintiff is entitled to the relief demanded, or, at least, some relief. The facts themselves must be stated, not by way of recital or probative facts, but by direct allegations of the ultimate facts relied on to sustain the action. 3. A complaint under Section 5424, Comp. Laws, by the mortgagee of a subsequent mortgage, to recover the surplus in the hands of the sheriff making a sale under a prior mortgage, must show (1) that a prior mortgage was executed, and that it contained a power of sale; (2) that under and by virtue of such power of sale the defendant sold the property for a specified sum, which was paid to him; (3) the amount remaining in his hands as surplus; (4) the mortgage of plaintiff; and (5) a demand and refusal. KELLAM, P. J., dissenting. 4. The complaint in this action alleged that the defendant, acting as sheriff, and pursuant to a notice of foreclosure. sold the lands specifically described in the complaint for the sum of $700, and delivered to the purchaser a certificate of sale. Held, insufficient; as no facts are stated from which a court would be authorized to conclude that any mortgage had been given under which such a sale could have been made, and there being no direct allegation that the $700 was paid. KELLAM, P. J., dissenting. 5. It was alleged in the complaint that defendant made "an affidavit pur * porting to show the amount received from the purchase, * * and that, according to said affidavit, there remained in his hands the sum of $160.29." Held, not a sufficient averment that the defendant had that amount in his hands, there being no direct allegation that he held that amount in his hands, as surplus, on which an issue could properly be raised." [Syllabus by the Court. Opinion filed January 15, 1892.] Appeal from circuit court, Day county. Hon. A. W. CAMPBELL, Judge. Action to recover money had and received. murred. Overruled. Defendant appeals. The facts are fully stated in the opinion. Defendant de Reversed. J. D. Blake (Little & Nunn of counsel) for appellant. Matters of substance must be directly alleged independent of an attempt to incorporate them in a pleading by way of reference to exhibits or otherwise. Taylor v. Blake, 11 Minn. 256; Dickinson v. Cole, 34 Wis. 621; Coolbaugh v. Roemer, 30 Minn. 424; Larimore v. Wells, 29 Ohio St. 13; City v. Signoret, 50 Cal. 298; Bowling v. McFarland, 38 Mo. 464. Plaintiffs should have alleged the making of the mortgage by the owner of the premises, the power of sale therein, the name of the mortgagee, a default, a proper notice by mortgagee, and sale by the sheriff pursuant to the terms of the mortgage. Pinney v. Fridley, 9 Minn. 34; Greegs v. City, Id. 246. Frank W. Babcock for respondent. It is presumed that the sheriff performed his duty. Lawson's Presump. Ev. p. 53, rule 14; Gwynne's Sher. 475; 2 O. S. 241; 14 O. S. 240; 21 Pick. 187; 4 O. S. 112. The affidavit of sale is conclusively presumed to state the truth. Freeman on Ex. § 366; State v. Penner, 27 Minn. 269. There being a surplus on the sale and a refusal to pay it over to plaintiff |