Planning Mills v. . McNinch , 99 N.C. 517 ( 1888 )

The action was brought to recover a balance of $91.66, alleged to be due to the plaintiff for certain building materials furnished to the feme defendant, to be placed upon, and for the improvement of, her separate real estate. The complaint, as to the first cause of action therein alleged, demands judgment for the debt, and the enforcement of a mechanic's lien in respect to the materials supplied; as to the second cause of action, it demands judgment for the debt, and the enforcement of it against the estate of the feme defendant.

The following is a copy of the material parts of the case stated on appeal:

"The plaintiff, at first, filed a complaint, setting forth but one cause of action, which was identical with the first cause of action contained in the amended complaint. The defendants filed a joint answer to the complaint first filed, denying the several allegations (518) thereof.

At Spring Term, 1887, the plaintiff, by leave of the court and consent of counsel for defendants, amended the said complaint, by adding thereto a second cause of action, and the defendants answered, denying the allegations thereof.

At the trial of the action, and after the jury had been empaneled, and without withdrawing their answer, the defendants demurred ore tenus to the complaint as amended, upon the ground that the court had not jurisdiction of either of the causes of action therein set forth.

The court sustained the demurrer as to the first cause of action, and overruled it as to the second cause of action, and the defendants excepted."

There was a verdict and judgment for the plaintiff, and the defendants appealed to this Court. The court had not jurisdiction of the subject-matter of the first cause of action, as alleged in the complaint, because it simply alleged a debt due the plaintiff, and a lien in connection therewith, of which a justice of the peace had jurisdiction.

The second cause of action alleged the same debt, and that it was chargeable upon the separate estate of the feme defendant, and as to it, judgment was demanded, that the payment of the debt be enforced by a proper judgment, directing a sale of the real estate, if need be. The court had jurisdiction of the cause of action thus alleged. The purpose was to enforce the payment of the debt, by a resort to the separate estate of thefeme covert defendant. It is expressly decided that the Superior Courts have jurisdiction in such cases. Dougherty v. Sprinkle, 88 N.C. 300;Webster v. Laws, 89 N.C. 224; Smaw v. Cohen, 95 N.C. 85; Neville v.Pope, ibid., 346.

But the appellants insist that, inasmuch as the complaint, was (519) at first filed, alleged but a single cause of action, of which the court had not jurisdiction, it could not obtain it by an amendment of the complaint, alleging a cause of action of which it had jurisdiction. This may or may not be so ordinarily, but, in this case, the defendants consented to the amendment, and thus consented to constitute an action before the court, of which it had jurisdiction as to the parties and the subject-matter of the action. The parties could thus consent to come or remain before the court, and the appellants, having once consented to the amendment, could not afterwards, in the course of the action, withdraw such consent, unless with the assent of the appellees. The parties, in effect, consented to remain before the court and litigate a cause of action not at first alleged, but which was afterwards formally alleged on one side and denied on the other, and the court took notice of the agreement thus appearing, and allowed them to do so. It was competent thus to confer jurisdiction.

It was contended on the argument, that the parties could not, by consent, confer jurisdiction. This is true in some cases, but the rule invoked does not apply in cases like the present one. Parties may consent to submit to the jurisdiction of the court, if they and the cause of action be such as the court may lawfully take jurisdiction of; but if the court cannot, in law, take jurisdiction of the parties for, any reason, or of the cause of action, consent or agreement of parties cannot confer it, because, in that case, the law does not give or allow it; on the contrary, it forbids it. The law prescribes the jurisdiction of courts. If the court may take jurisdiction — that is, if the law gives and allows it, then the consent of parties may confer it, in a particular case coming within the law allowing it, not otherwise.

(520) It is not at all certain that the court could not, without the consent of the appellants, have allowed the amendment alleging the same cause of action, in a different way developing the jurisdiction of the court. The cause of action of which the court, in fact, had jurisdiction, was imperfectly alleged in the complaint, as at first filed. What prevented the court from allowing the appropriate amendment? But we need not pass upon this view of the case, and we mention it to exclude a conclusion, that the court had not authority to allow such amendment.Johnson v. Finch, 93 N.C. 205; Singer Mfg. Co. v. Barrett, 95 N.C. 36.

There is no error, and the judgment must be affirmed.

Judgment affirmed.

Cited: Berry v. Henderson, 102 N.C. 527; Elliott v. Tyson, 117 N.C. 116;Smith v. Newberry, 140 N.C. 387; Wilson v. Batchelor, 182 N.C. 94.