Pescud v. Hawkins

• Decision Date: 30 June 1874
• Citation: 71 N.C. 299
• Parties: PETER F. PESCUD v. P. B. HAWKINS.
• Court: North Carolina Supreme Court

71 N.C. 299

PETER F. PESCUD

v.P. B. HAWKINS.

Supreme Court of North Carolina.

June Term, 1874.

A plaintiff may elect to be non-suited when the Judge intimates an opinion that the Court has no jurisdiction of the action, and when the defendant has moved to dismiss for want of jurisdiction.

( McKesson v. Mendenhall, 64 N. C. Rep. 502, cited and approved.)

CIVIL ACTION to recover an acceptance of one hundred and ninety-one dollars, tried at the Special (January) Term, 1874, of WAKE Superior Court, before his Honor, Judge Tourgee.

On the trial below the defendant moved to dismiss the action because the complaint does not set forth a cause of action within the jurisdiction of the Court.

The plaintiff moved to amend the summons and complaint by estimating the interest to the date of the summons, and incorporating that in the demand of the summons and complaint, which would make the amount more than $200. Motion refused. Plaintiff then asked to be allowed to enter a judgment of non-suit, which was likewise disallowed.

His Honor granted the motion of the defendant to dismiss the action, and plaintiff appealed.

Fowle and A. M. Lewis, for plaintiff .

Batchelor, for defendant .

BYNUM, J.

The defendant moved the Court to dismiss the action for want of jurisdiction in the Court. This was met by a counter-motion of the plaintiff to be allowed to take a non-suit. His Honor refused to non-suit and dismissed the action.

In this there was error.

A judgment dismissing an action is unknown at the common law, but is an ordinary judgment in equity proceedings, where before the cause is set down for hearing it is certainly not equivalent to a retraxit at law, or a nolle prosequi which ordinarily has the effect of a retraxit; Adams, 373. This term ““dismissed” in law proceedings, has come into use by a provision in our statute. Rev. Code, ch. 31, sec. 38, which is dropped in the new system of practice established by the Code of Civil Procedure.

By the latter system of pleading the objection to the jurisdiction can now be taken only by answer or demurrer, the demurrer being either written or ore tenus. C. C. P., sec. 91, 99.

It may be that the proper construction of this new legal term “dismissed,” which, as a law term, has no technical signification, would be to give it at law the same effect it has in equity, where it does not necessarily prevent the party from beginning anew, or affect his rights or defence in case another action is instituted.

But this point does not now arise.

In McKesson v. Mendenhall, 64 N. C., 502, the very point now before the Court was decided, and it was there held “that the plaintiff may elect to be non-suited in every case where no judgment other than for costs can be recovered against him by the defendant.”

But the defendant attempts to escape the authority of this case by drawing a distinction between cases where the Court has no jurisdiction and the action is coram non judice, and cases where the action is constituted in the proper Court, admitting that the doctrine applies to the latter but not to the former, which is his case. The Court, however, in the opinion referred to did not make the distinction contended for by the defendant, and no sufficient reason or authority appears why it should be made. For although the Court had no jurisdiction in this case, yet for many purposes the case is nevertheless in Court, as to move to dismiss, to non-suit, nol. pros., and other motions, and if no defence is made to the action, the plaintiff may proceed to judgment and execution.

It then seems a...