Starke v. . Cotten , 115 N.C. 81 ( 1894 )

It has been repeatedly held that if in an action before a justice of the peace there are two causes of action, of one of which the justice has jurisdiction and of the other he has not, the justice (84) can proceed to try the first, treating the latter as surplusage. Manufacturing Co. v. Barrett, 95 N.C. 36. The jurisdiction as to such valid cause of action is not ousted because further relief is asked which the justice has no power to grant. Deloatch v.Coman, 90 N.C. 186; Ashe v. Gray, 88 N.C. 190; Morris v. O'Briant,94 N.C. 72. In the latter case it is held that the question of jurisdiction is to be determined by the summons rather than the complaint, as it depends upon the "sum demanded," citing Noville v. Dew, 94 N.C. 43, to same effect. The Code, sec. 832. In the present case there was no written complaint. The summons stated the cause of action to be for "non-payment of the sum of $70.80, with interest on same from 1 January, 1893, due by account and contract, and demanded by said plaintiff." This is clearly a cause of action of which the justice of the peace had jurisdiction. The justice of the peace in making his "return to the appeal" states the verbal contention before him, from which it appears that the plaintiff claimed $70.80 due him by the defendant Cotten for damages for breach of contract in not delivering certain tobacco bought of said Cotten, and to subject that sum out of the proceeds of the tobacco in the hands of defendant Cooper, to whom Cotten had sold it. Of this last the justice had no jurisdiction; but this did not oust the jurisdiction as to the cause of action stated in the summons against Cotten. The Code, sec. 908, gives the Superior Court the fullest power on appeal "to amend any warrant, process, pleading or proceeding" had before a justice of the peace "either in form or substance," and "at any time either before or after judgment," and "whether in a civil or criminal action." This has been always favored, and the only limitation recognized by the courts has been that the amendment shall not entirely change the character of the action. Statev. Norman, 110 N.C. 484. His Honor, therefore, properly allowed an amendment discarding the attempted equitable proceeding against Cooper, and submitting as the only issue: (1) Was there a breach (85) of the contract by defendant Cotten? (2) If so, what damage has plaintiff sustained? These the jury found in favor of the plaintiff, and assessed the damages at $70.80. These damages the defendant Cotten had never offered to pay, but, on the trial before the justice, admitting the contract, he contended that he was relieved from breach of it by non-performance of plaintiff's part of it, and further insisted, and as to this last properly, that plaintiff could not subject the tobacco, or its proceeds in Cooper's hands, for such damages.

The defendant Cooper was not adjudged by the justice to pay any costs or judgment to the plaintiff. The judgment of the Superior Court is only against the defendant Cotten for $70.80 and costs, and should be affirmed. A nonsuit seems to have been taken as to Cooper.

Affirmed.

Cited: McPhail v. Johnson, post, 302; Hargrove v. Harris, 116 N.C. 420;Patterson v. Freeman, 132 N.C. 359.

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