Cromer v. . Marsha , 122 N.C. 563 ( 1898 )

This action commenced before a justice of the peace and, by successive appeals, has come to this Court. The amount claimed in the summons is $200, and there was no other complaint filed. The defendant denied owing the plaintiff anything, plead statute of frauds and coverture.

Upon the trial the plaintiff offered in evidence a store account, consisting of many items on different days, amounting to $242 — stating (564) that while the whole of said account was due he only claimed $200, and that he remitted the excess. The trial proceeded upon this contention on the part of the plaintiffs and these pleas of the defendant, when the court rendered judgment for plaintiff for $200, and defendant appealed to the Superior Court, where it appears the defendant, in addition to the defenses pleaded and relied on before the justice of the peace, insisted that the sum demanded exceeded $200, and that the justice had no jurisdiction. Judgment again being entered against the defendant, she appealed to this Court. In stating the case on appeal, it is expressly stated that all other pleas and defenses were abandoned except the question of jurisdiction.

This defense cannot be sustained. Section 832 of The Code provides that the summons shall state the amount claimed. This was done, and the amount claimed was $200. Section 834 of The Code gives justices of the peace original and exclusive jurisdiction of all actions upon contract where the sum demanded does not exceed $200. The sum demanded in this action did not exceed $200.

In Allen v. Jackson, 86 N.C. 321, it is held that in a justice's court the summons is a substitute for the complaint, where no other complaint is filed. There was no other complaint filed in this case. It is true that the plaintiff used on the trial an account aggregating the sum of $242. But it appears that, while he stated that the whole amount was due, he only claimed $200 and remitted the excess, and the judgment was for $200 only. There was no objection to this in the justice's court, where it should have been made, if there was objection; and as there was none made there, it does not seem to us that it should be made for the (565) first time in the Superior Court (Cotton Mills v. Cotton Mills, 115 N.C. 475), as the jurisdictional question did not appear upon the pleadings. And while it seems to us that justices should observe the formula provided in section 835 of The Code, that there may be no mistake about the remitter, it appears to us that this case is fully covered by Brantley v. Finch, 97 N.C. 91. And being governed by the ruling of the Court in that case (Brantley v. Finch) we must hold that there was no error in the judgment of the court below.

Affirmed.

Cited: Knight v. Taylor, 131 N.C. 85; Parker v. Express Co.,132 N.C. 130; Harvey v. Johnson, 133 N.C. 361; Teal v. Templeton,149 N.C. 34; Brock v. Scott, 159 N.C. 516; Fields v. Brown,160 N.C. 300.