City Of Wilmington v. Schutt

• Decision Date: 10 December 1947
• Docket Number: No. 595.,595.
• Court: North Carolina Supreme Court
• Parties: CITY OF WILMINGTON et al. v. SCHUTT et al.

45 S.E.2d 364

228 N.C. 285

CITY OF WILMINGTON et al.

v.SCHUTT et al.

No. 595.

Supreme Court of North Carolina.

Dec. 10, 1947.

Appeal from Superior Court, New Hanover County; Chester Morris, Judge.

Civil action by City of Wilmington and others against George Schutt and others to recover value of labor and material furnished in making alterations and repairs on defendants' property and to have same declared a lien thereon. Judgment by default final was rendered for plaintiffs, and from a judgment allowing defendants' motion to dismiss the action for want of jurisdiction, plaintiffs appeal.

Reversed.

The essential allegations in the complaint by which the merit of the motion is to be tested are these:

(1) The plaintiffs and defendants entered into a written contract under seal under the terms of which defendants authorized the plaintiffs to do certain construction, alteration and repair work on their premises, pursuant to an ordinance duly adopted in furtherance of rat eradication and typhus fever control.

(2) The defendants in said contract specifically agreed to reimburse plaintiffs for the actual expenditures made by them in performing the contract on their part and "that said expenditures should be and constitute a lien on said premises until paid."

(3) Plaintiffs, in doing the work contemplated by the contract, made expenditures in the total amount of $182. The defendants, on demand, failed to pay the same.

Plaintiffs instituted this action in the Superior Court to recover said amount of $182 and to have the same declared a lien upon said land and premises until fully paid. There was judgment by default final on the debt and by default and inquiry on plaintiff's claim of a lien. The defendants had the cause set on the motion docket and moved to dismiss for want of jurisdiction of the cause of action alleged in the complaint. The motion was allowed and judgment dismissing the action was duly entered. Plaintiffs excepted and appealed.

J. H. Ferguson, of Wilmington, for plaintiff appellants.

Stevens & Burgwin, of Wilmington, for defendant appellees.

BARNHILL, Justice.

A justice of the peace has no equity jurisdiction, and when the remedy sought in a suit on contract is, in whole or in part, equitable in nature the action must be instituted and maintained in the Superior Court, irrespective of the amount in controversy. Mcintosh, P. & P., sec. 62, p. 60; Kiser v. Blanton, 123 N.C. 400, 31 S.E. 878; Sewing Machine Co. v. Burger, 181 N.C. 241, 107 S.E. 14; Grocery Co. v. Banks, 185 N.C. 149, 116 S.E. 173, 175.

When the amount sought to be recovered in such an action is less than $200, "it is not now required that the debt...