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Gerald-Esquire
Gerald-Esquire, Lawyer
Category: Real Estate Law
Satisfied Customers: 3596
Experience:  30 years of experience.
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I wish to bring an action to end the co-ownership of a

Customer Question

I wish to bring an action to end the co-ownership of a horse, the value of which is below $7,500. Can I bring a "division and partition" action (38-28-101) in the small claims court? When you answer "yes, you can bring an action at the small claims court" or "no, you cannot bring an action at the small claims court" please bring an authoritative reference to your answer. Please do not merely give me your interpretation of 13-6-403 or copy and paste what it says (I have already read it).This is the second time I am posting this question. The first time, I got a response stating that the small claims court can ONLY deal with money claims. That is not true, because 13-6-403 specifically states that the small claims court will have power "to enforce a contract by specific performance or to disaffirm, avoid, or rescind a contract ". Section 13-6-403 also states that the small claims court will have the following power:"the small claims court shall have concurrent original jurisdiction with the county and district courts in all civil actions in which the ... value of the personal property claimed by either the plaintiff or the defendant ... does not exceed seven thousand five hundred dollars..."Note the words: the small claims court will have jurisdiction in ALL civil actions where the value of the property "claimed" is $7,500. Now, I appreciate that "claiming" is not the same as "division and partition", but I would be grateful for conclusive authority that "partition and division" is excluded from small claims court proceedings, or at the alternative, that it is in fact within its jurisdiction.
Submitted: 10 months ago.
Category: Real Estate Law
Expert:  Gerald-Esquire replied 10 months ago.

Hello,

Thank you for using Just Answer. I want to provide you the best service I can. Please feel free to ask any follow up questions you have.

I am an attorney with 30 years of experience; I hope to provide you information that will help you in resolving your question.

The reason that you are having difficulty obtaining the type of information that you are seeking is because the Small Claims Court is not a court of Record. By this I mean that there are no published reports of cases pertaining to Small Claims Court Decisions and Appeals from the Small Claims Court are Apeals De Novo - meaning that the District Court will hear the case anew, and usually without reference to the Small Claims Court decision. Consequently, and purely as a practical matter there are little if any published decisions that address the nuances of the jurisdiction of the small claims court.

This means that you are left first with the Court's own interpretation of its jurisdiction.

As you have indicated yourself 38-28-101 provides for "Actions for the division and partition of real or personal property or interest therein may be maintained by any person having an interest in such property."

While usually used for Real Property the law provides for an action for the division of personal property as well. Therefore the Small Claims Court SHOULD have jurisdiction over the matter if it is otherwise within the dollar limitations.

But I am afraid your search for conclusive authority is going to be fruitless for the reasons I explained above.

Since it is certain that the District Court has jurisdiction and that if there is an Appeal it will go to that Court anyway, why not save yourself the steps and file directly with the District Court. You can still represent yourself in District Court and the matter that you describe seems fairly straight forward.

I apologize for not being able to provide you the exact information that you are looking for. I had previously responded to your first question and considered not responding to this one because I know that the response is disappointing and not what you want. BUT I did not want you to continue spending your energy looking for something that does not exist.

I hope the information I provide is useful to you. I want you to be comfortable and satisfied with my attempt to assist you. Please, if you have ANY follow up questions, feel free to ask. Please note that I am generally unavailable Friday evening through Sunday.

Please do not forget to give me a positive rating. It adds nothing to your costs but it helps me greatly. Thank you.

If you are dissatisfied with my response PLEASE let me know before giving me a negative review so that I may try to be of better assistance. Or if you prefer, let me know and I can “Opt Out” and your question can be re-posted without additional cost to you. I will be fair to you and only ask the same from you.

Good luck.

Please note: Information is educational and not given as legal advice. Only your local attorney can give legal advice. I can't establish or accept an attorney-client relationship with you. All posts are available for public viewing.

Kind regards,

Gerald

Customer: replied 10 months ago.
Dear *****
I understand the reason you give as to why there is no refence. However, in the absense of a reference, the answer was not helpful. Back to real life - a judge just removed my case to County Court on account of the partition issue, so at least one judge does not agree with you. Please arrange for me to get a refund, and close this question. I would like to give you a positive rating, but I do not wish to pay $54 for giving you a good rating. Sorry.

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