Summary
In Fort v. Penny, 122 N.C. 232, in which objection was made in the Superior Court to dividing a cause of action in order that actions might be commenced before a justice of the peace, it was held: "If the proofs had shown as matter of fact that the two demands appearing in the two summonses were one and the same transaction, and therefore indivisible," the defendant must file plea in abatement, and upon failure to do so the objection was waived, and upon the same principle this action may be maintained.
Summary of this case from Ins. Co. v. R. ROpinion
(Decided 15 March, 1898.)
Contract — Express and Implied Contract — Action on Contracts — Jurisdiction — Plea in Abatement — Splitting Accounts.
1. Where, in the execution of an express contract under which plaintiff was to receive compensation for his services, the plaintiff advanced money at the request of the defendant, the former may sue separately on the contract and for the money so advanced.
2. Where the subject-matter is within the jurisdiction of a justice of the peace, the fact that the demand arose out of an indivisible contract which was split for jurisdictional purposes must be taken advantage of by a plea in abatement before pleading to the merits.
3. A demand arising out of an indivisible contract cannot be split for jurisdictional purposes.
ACTION, tried before Robinson, J., and a jury, at October Term, 1897, of WAKE.
Jones Boykin for plaintiff (appellant).
(232) Argo Snow and W. N. Jones for defendant.
Judgment of nonsuit and appeal by plaintiff.
On 7 June, 1897, plaintiff sued defendant before a justice of the peace for $199.57 on a contract for cutting, hauling, and selling wood, taken from defendant's land. On the same day the plaintiff sued the defendant for $75.83 before some justice of the peace for money advanced, at the defendant's request, in executing said contract. The defendant pleaded the general issue to each action; no plea to the jurisdiction was filed, and by consent the two cases were tried together. After trial, an appeal was taken, and in the Superior Court the two cases were consolidated by consent. The defendant then moved for a nonsuit on the ground that the justice of the peace had no jurisdiction, since the account was one transaction arising out of an indivisible contract and could not be split for jurisdiction purposes. His Honor held that the justice of the peace had not jurisdiction and entered a nonsuit, and the plaintiff appealed to this Court.
It is true that the same contract cannot be divided for such purposes, but the defendant's difficulty is that the summons, the proof, and the facts stated in the "case" by his Honor show two contracts, one express and the other implied, one for services and the other for money advanced at the defendant's request for executing said (express) contract, each one within a justice's jurisdiction. The order of nonsuit was therefore erroneous.
If the proofs had shown as matter of fact that the two demands appearing in the two summonses were one and the same transaction, and therefore indivisible, the defendant would have been confronted with the rules so well pointed out in Branch v. Houston, 44 N.C. 85. (233)
One of these rules is thus stated: "If the allegations bring the case within the jurisdiction, so that the defect is not apparent, and the general issue is pleaded, the proof not sustaining the allegation, there is a fatal variance which is ground of nonsuit . . . unless affidavit be made according to the statute."
"If the subject-matter is within the jurisdiction and there be any particular circumstance excluding the plaintiffs or exempting the defendants, it must be brought forward by a plea to the jurisdiction; otherwise, there is an implied waiver of the objection, and the court goes on in the exercise of its ordinary jurisdiction."
If the defective jurisdiction is apparent on the face of the record, the court stops at once, if necessary, on its own motion, and refuses to countenance a usurpation of jurisdiction and to render a void judgment, coram non judice.
The special plea in abatement must be made before pleading to the merits, and in a case like this must have been made in the justice's court. Blackwell v. Dribbrell, 103 N.C. 270.
The question of dividing accounts for jurisdictional purposes was fully considered in Magruder v. Randolph, 77 N.C. 79.
Reversed.
Cited: Copeland v. Tel. Co., 136 N.C. 12.
(234)