Opinion
August Term, 1850.
1. Where a suit is commenced in the Superior Court for a less sum than $60 for goods, etc., sold, or for a less sum than $100 due by note, etc., the suit shall be dismissed; and if the party demands more in his writ for the purpose of evading the law, and the jury finds that a less sum is due to him than that of which the court has jurisdiction, he shall be nonsuited: Provided, that if the party will make affidavit that the sum for which he has sued is really due, but he cannot establish it for want of proof, or that the time limited for the recovery of any article bars a recovery, then the plaintiff shall have judgment, etc.
2. Held, that the same rules apply to suits in the Superior Court of Cleveland County, removed under the private acts of 1844 and 1846, from the County to the Superior Court of that county.
APPEAL from the Superior Court of Law of CLEVELAND, at Spring Term, 1850, Caldwell, J., presiding.
J. G. Bynum for plaintiff.
J. Baxter and G. W. Baxter for defendant.
The action was commenced in the Superior Court of Cleveland. The declaration was in indebitatus assumpsit for $100. On the trial the plaintiff proved an account for $61, which was reduced by a payment to $41, for which sum the jury rendered a verdict. The Court, on motion of the defendant, set aside the verdict and nonsuited the plaintiff, because the court had not jurisdiction.
By section 40 of the act of 1836 it is enacted, "that no suit shall be originally commenced in any court of record for any debt or demand of less value than $60, for goods, wares and merchandise," etc., "nor for any sum of less value than $100 due by bond, note," etc. By section 41 it is provided, "if any suit shall be commenced in any of the said county (220) courts for any sum of less value than $60, contrary to the provision of the preceding section, the same shall be abated on the plea of the defendant," etc. Section 42 directs that "if any suit shall be commenced in any of the Superior Courts, contrary to the provisions of section 40, the same shall be dismissed by the court, and if any suit shall be commenced in any of the Superior Courts contrary to the true intent and meaning thereof, or if any person shall demand a greater sum than is due, on purpose to evade the operation of this act or otherwise, and by the verdict of a jury it shall be ascertained that a less sum is due to him in principal and interest than by the provision of the said section 40 the said court has jurisdiction of, then and in that case it shall be the duty of the court to nonsuit the plaintiff; and he shall pay all costs: Provided, that if the plaintiff will make an affidavit to be filed in the case, that the sum for which the suit is brought is really due, but that for the want of proof or that the time limited for the recovery of any article bars a recovery, then the plaintiff shall have judgment," etc.
The result from these different sections is that if a suit be commenced in the County Court for a sum of less value than $60, it shall be abated upon the defendant's plea. He cannot, if he plead in chief, avail himself of the prohibition by a motion to dismiss. If the suit be in the Superior Court, and be commenced for, that is, "if the writ demand, a less sum than pointed out in section 40, the court shall dismiss it." Clark v. Cameron, 26 N.C. 161. The object of the Legislature, however, might be evaded in the latter case by demanding in the writ a sum which would give the court jurisdiction, when, really, a less sum was due. In such case the court cannot dismiss the suit. It cannot judicially know the fact to be that it had (221) not jurisdiction; but that difficulty is met in section 42. If the suit shall be commenced contrary to the provisions of section 40, or if a greater sum is demanded in the writ than is due, with the intent to evade it, and the verdict of the jury shall be for a sum less than that which give jurisdiction to the court, the plaintiff shall be nonsuited and pay the costs; and the Legislature considers the finding of a less sum by the jury as proof of the intent of the plaintiff in demanding a larger sum than is found due. And such has been the practice under the act, as far as we are informed. But it is not conclusive upon the party — for he may, under the first proviso, show that the sum really due is such as to give jurisdiction to the court. The plaintiff, however, contends that, as he could have brought his action in the County Court by the general law, and as jury trials in that tribunal are abolished in Cleveland County and transferred to the Superior Court, by a just construction of the local acts, advantage must be taken of the want of jurisdiction, as is pointed out in section 41, and that the provisions of section 42 do not apply to such a case. We do not concur in this view of the law. By the local act of 1846, ch. 150, the trial by jury is abolished in the County Court of Cleveland, and it is declared that an act passed in 1844, giving to the Superior Courts of the counties of Yancey and others original and exclusive jurisdiction in all cases where the intervention of a jury may be necessary, shall extend to the county of Cleveland. By section 5 of the act of 1844 all suits are directed to be brought in the Superior Courts of the counties embraced in the act. By the local act of 1846, section 41 of the general law, so far as the county of Cleveland is concerned, is repealed. The jurisdiction of the County and Superior Courts is not concurrent in all suits upon money demands. The private act of 1846 did not increase the jurisdiction which the Superior (222) Court of Cleveland would have had under the general law; its only effect in this particular was to increase its business by throwing into it original suits which might have been brought in the County Court; nor does it disturb the provisions of section 42 of the general law. As to the proceedings of the Superior Courts, they remain as they were under the act of 1836. By this latter act the finding of the jury ascertains the sum actually due to the plaintiff, and also the intent with which a larger sum was demanded in the writ, "to wit," to evade the act; and but for the proviso, it would have been conclusive upon the plaintiff, and the court would have been imperatively bound to nonsuit him, non obstante veredicto. But the proviso put it in his power to avoid the conclusion, if the facts will justify him in making the required affidavit. This has not been done, and the court committed no error in the judgment pronounced.
PER CURIAM. Judgment affirmed.