Boyett v. Vaughan

• Court: North Carolina Supreme Court
• Writing for the Court: ASHE
• Citation: Boyett v. Vaughan, 85 N.C. 363 (N.C. 1881)
• Decision Date: 31 October 1881
• Parties: JOHN E. BOYETT v. THAD. VAUGHAN.

85 N.C. 363

JOHN E. BOYETT

v.THAD. VAUGHAN.

Supreme Court of North Carolina.

October Term, 1881.

PETITION to rehear, tried at October Term, 1881, of THE SUPREME COURT.

Messrs. Mullen & Moore, for plaintiff .

Mr. Thomas N. Hill, for defendant .

ASHE, J.

This is a case on rehearing the cause which was adjudicated by this court at the June term, 1878, and to be found reported in 79 N. C., 528.

It was an action brought before a justice of the peace in the county of Halifax. The plaintiff in his complaint before the justice claimed $105 for lumber sold the defendant. The defendant in his answer set up by way of counter-claim a debt due him by plaintiff, evidenced by a note of $200. There was judgment given by the justice against the plaintiff for $69.13, the excess of the counter-claim over the plaintiff's demand. The plaintiff appealed to the superior court.

When the case was called for trial in the superior court the plaintiff suggested a diminution of the record in the transcript, and was permitted to amend the same, by interpolating therein, a replication and counter-claim to the answer and counterclaim of the defendant.

The plaintiff in his replication alleged that the note of $200, constituting the defendant's counter-claim, was given by him to the defendant, in part payment for a tract of land which he had purchased from him, and that at the time of the sale there was a parol agreement between them, that if upon a survey of the land it should fall short of four hundred acres, he would pay $4.00 per acre for the deficiency, and that the land fell short of four hundred acres by eighty-three acres, for which he set up a counter-claim to the defendant's counter-claim.

The defendant denied the counter-claim of the plaintiff. The plaintiff was permitted by the court to remit $57.06 of his claim for the deficiency in the land.

Issues were submitted to the jury, who found that the defendant did agree with the plaintiff to pay him four dollars per acre for each acre the land might fall short of four hundred acres, and that the deficiency was eighty-three acres.

The court gave judgment in behalf of the plaintiff for $200, and the defendant appealed to this court, and at the June term, 1878, the judgment of the superior court was affirmed by a majority of the court, (Chief Justice SMITH filing a dissenting opinion, which was concurred in by Mr. Justice BYNUM.)

We are of the opinion there was error in the judgment of this court.

First, because the court sustained an amendment allowed in the court below which raised the sum demanded in the action beyond the jurisdiction of the justice of the peace, and secondly, the plaintiff was permitted to set up a counter-claim to the counter-claim of the defendant.

The amount claimed by the plaintiff in his complaint was $105, and in his counter-claim $332, making $437, and deducting the $57.06 remitted, left $379.94, which was adjudicated in this court by indirectly according to the justice of the peace a jurisdiction to that amount.

We do not think the constitutional limit to the jurisdiction of justices of the peace can be so evaded. If the replication allowed in the superior court had been filed in the justice's court, we think it is clear that the court should have held that the justice had exceeded his jurisdiction, and that the case be dismissed. It is the jurisdiction of the justice of the peace which, on appeal, gives...