Summary
In Gillam v. Ins. Co., 121 N.C. 369, the Court approved a refusal of leave to amend the complaint in that case, for the above reasons, but the granting permission to amend is not ground for exception that the complaint would set up a cause of action that is barred by the statute of limitations, as that is matter of defense to be set up in the answer to the amended complaint, if the defendant shall choose to plead that defense.
Summary of this case from Goodwin v. Fertilizer WorksOpinion
(September Term, 1897.)
Action for Money Paid Through Mistake — Courts — Jurisdiction — Pleading — Referee — Amendment — Practice.
1. Under the Code, the demand for relief in a complaint is immaterial, and the court will give any judgment justified by the pleadings and proof.
2. The Superior Court has not original jurisdiction of an action by a stockholder in an insurance company doing business as a building and loan association against the company to recover an overpayment of interest on a loan, when the amount sought to be recovered is less than $200.
3. In an action to recover for overpayment of interest, made by mistake, recovery cannot be had for the forfeiture of double the interest as a penalty for usury, since, upon the allegation of such overpayment, by mistake, no legal implication arises that the plaintiff is suing for the forfeiture.
4. An amendment to a complaint, the effect of which is to confer and not merely to show jurisdiction, will not be permitted; hence, where the amount sought to be recovered in an action brought in the Superior Court was not within its jurisdiction, the plaintiff cannot be allowed to amend his complaint by changing the cause of action and increasing the amount of the recovery prayed for, so as to bring it within such jurisdiction.
5. When to amend a complaint in an action would have the effect of depriving the defendant of the benefit of the plea of the statute of limitations, which could be used against an original action, the amendment will not be allowed.
ACTION begun 2 March, 1895, and heard, on exceptions to report (370) of referee, at Fall Term, 1897, of BURKE, before Greene, J., to recover the sum of $132.37, the excess of interest alleged by plaintiff to have been paid to defendant under mistake and in ignorance of his rights.
On hearing the exceptions, his Honor overruled the finding of (372) the referee that the Superior Court had no jurisdiction of the action, sustained the refusal of the referee to allow the amendments asked for by plaintiff, and rendered judgment for the plaintiff for $382.98, double the amount of the excess of the debt and 6 per cent interest paid by plaintiff. From this judgment the defendant appealed.
S. J. Ervin for plaintiff.
Avery Avery for defendant.
It is true that, under the Code, the demand for relief is immaterial, and the court will give any judgment justified by the pleadings and proof. Knight v. Houghtalling, 85 N.C. 17; Stokes v. Taylor, 104 N.C. 394; Hood v. Sudderth, 111 N.C. 215; Sams v. Price, 119 N.C. 572; Adams v. Hayes, 120 N.C. 383. But upon inspection of the complaint this action is brought to recover an overpayment of $132.27 of interest, alleged to have been made by mistake and ignorance. The referee correctly held that there was no original jurisdiction of such action in the Superior Court. Holden v. Warren, 118 N.C. 326. The plaintiff then sought to treat it as an action to recover the penalty for usury of forfeiture of double the interest paid. Code, sec. 3836 (now amended by Laws 1895, ch. 69). But upon an allegation of overpayment of interest by mistake, no legal implication arises that the plaintiff is suing for the forfeiture of double the interest, and there is nothing in the complaint from which it can be inferred. The amount of interest paid is not even stated, only the amount of the overpayment which it is claimed was paid by mistake. In not sustaining the referee and dismissing the action there was error.
(373) The referee properly refused leave to amend (Code, sec. 422), so as to charge a cause of action for the penalty of double the interest. This being an entirely different cause of action and for a different amount, which was within the jurisdiction of the Superior Court, such amendment would have been "not to show, but to confer jurisdiction," and therefore not allowable, even under the present liberal system as to amendments. Clendenin v. Turner, 96 N.C. 416; King v. Dudley, 113 N.C. 167. Besides, to have allowed it might have had the effect to deprive the defendant of the benefit of the defense of the statute of limitations, which could have been used against a new action brought for the avowed purpose of recovering the penalty for usury ( Roberts v. Ins. Co., 118 N.C. 429), and for that reason, also, the amendment could not be allowed. Gill v. Young, 88 N.C. 58; Henderson v. Graham, 84 N.C. 496; Cogdell v. Exum, 69 N.C. 464; Christmas v. Mitchell, 38 N.C. 535.
The Superior Court had no original jurisdiction of the cause of action stated in the complaint.
Action dismissed.
Cited: Whitaker v. Dunn, 122 N.C. 104; Pender v. Mallett, 123 N.C. 62; Goodwin v. Fertilizer Works, ib., 163; Baker v. Brem, 126 N.C. 370; Moore v. Moore, 130 N.C. 341; Voorhees v. Porter, 134 N.C. 597; Bolick v. R. R., 138 N.C. 371; McCullock v. R. R., 146 N.C. 317; Bradburn v. Roberts, 148 N.C. 219; Carson v. Bunting, 154 N.C. 534; Bryan v. Canady, 169 N.C. 583; Renn v. R. R., 170 N.C. 146; R. R. v. Dill, 171 N.C. 177.