Hopkins v. Barnhardt

• Decision Date: 24 November 1943
• Docket Number: 383.
• Citation: 27 S.E.2d 644,223 N.C. 617
• Parties: HOPKINS v. BARNHARDT.
• Court: North Carolina Supreme Court

27 S.E.2d 644

223 N.C. 617

HOPKINS v. BARNHARDT.

No. 383.

Supreme Court of North Carolina

November 24, 1943

Civil action instituted before a justice of the peace, tried de novo on appeal to the Superior Court, to recover penalty and attorneys' fees by reason of an alleged violation of the Emergency Price Control Act of 1942, 50 U.S.C.A. § 901 et seq.

Before the justice of the peace "plaintiff complained of defendant and alleged that defendant overcharged her for sugar and that she was entitled to recover $50.00 penalty plus reasonable attorneys' fees under law regulating same." Defendant failed to appear and judgment was rendered in favor of plaintiff and against the defendant for $50, and Robert H. Irvin and C.M. Lewellyn attorneys for plaintiff, were each awarded judgment against the defendant for $15. Defendant in apt time gave notice of appeal to the Superior Court. On the trial de novo in the Superior Court plaintiff offered evidence tending to show that defendant filed with the local rationing board on October 9, 1942, his ceiling price for sugar as seven cents per pound as of March 15, 1942, which ceiling price under the law and the General Maximum Price Regulation of the Office of Price Administration became effective April 28, 1942, and remains unchanged. That plaintiff, through her son, on or about August 22, 1942, purchased from defendant one hundred pounds of sugar for canning purposes at the price of $10.97. Plaintiff offered the sales ticket showing the purchase of the sugar and further testimony tending to show payment therefor out of proceeds from the sale of cotton, which proceeds were turned over to the defendant and credited on plaintiff's account.

From a jury verdict favorable to plaintiff and judgment based thereon in favor of plaintiff for $50, and requiring the defendant to pay into the office of the Clerk of the Superior Court the sum of $25, attorneys' fees for the use and benefit of plaintiff's attorneys, defendant appealed to the Supreme Court, assigning error.

By consent of the parties it was stipulated that Prentiss M Brown, Administrator, Office of Price Administration, should be made a party plaintiff. This was allowed pro forma.

B.W Blackwelder, of Concord, for appellant.

C.M. Lewellyn, of Concord, and John D. Shaw, of Charlotte, for appellees.

DENNY Justice.

The only exception and assignment of error by the defendant is to the refusal of his honor to enter judgment as of nonsuit upon the ground that plaintiff had not offered sufficient evidence to establish the ceiling price of the defendant on the date of sale of said sugar.

We think a more serious question confronts us on this record, to-wit, one of jurisdiction. The court, in accordance with the long-established practice, raises the question ex mero motu. "When there is a defect of jurisdiction, or the complaint fails to state a cause of action, that is a defect upon the face of the record proper, of which the Supreme Court on appeal will take notice, and when such defects appear the Court will ex mero motu dismiss the action." McIntosh, N.C. Pleading and Practice, p. 460; Shepard v. Leonard, 223 N.C. 110, 25 S.E.2d 445; State v. King, 222 N.C. 239, 22 S.E.2d 445; Edwards v. McLawhorn, 218 N.C. 543, 11 S.E.2d 562; McCune v. Rhodes-Rhyne Mfg. Co., 217 N.C. 351, 8 S.E.2d 219; Henderson County v. Smyth, 216 N.C. 421, 5 S.E.2d 136; Elizabeth City Water & Power Co. v. Elizabeth City, 188 N.C. 278, 124 S.E. 611; Cressler v. Asheville, 138 N.C. 482, 51 S.E. 53; Norris v. McLam, 104 N.C. 159, 10 S.E. 140.

We have for determination the question: Does a justice of the peace have jurisdiction in an action where the plaintiff demands a statutory penalty of $50, plus attorneys' fees.

The jurisdiction of a justice of the peace in this State is determined by the Constitution and statutes consistent therewith. Art. IV, sec. 27, N.C. Const. This court so held in the case of State v. Jones, 100 N.C. 438, 6 S.E. 655, 656, where it is said: "The jurisdiction thus conferred, and that may be conferred, is special not general; and the officer is limited, in the exercise of his authority, by the regulations and methods of procedure prescribed by statute, subject to the constitutional provision. That is, a justice of the peace can only exercise the powers conferred upon him by the constitution, and statutes in harmony with it; his jurisdictional authority is not enlarged by principles of law applicable only to courts of general jurisdiction; nor can he adopt methods of procedure or exercise his authority in ways not strictly allowed by law. He may do only what the statute allows him to do, and his official acts will be upheld, however informal, if they embody the substance of the thing or purpose intended." Since the jurisdiction of a justice of the peace is special--not general--what is the limitation upon the granted powers to adjudicate a claim (1) for a penalty of $50, and (2) to fix and award attorneys' fees? It has long been settled in this State that an action to recover a penalty is an action ex contractu, and, since justices of the peace have been given jurisdiction in matters of contract not exceeding $200, Art. IV, sec. 27, N.C. Const; C.S. § 1473, it follows that when a penalty demanded does not exceed $200, a justice of the peace has jurisdiction. Katzenstein v. Raleigh & Gaston R.R. Co., 84 N.C. 688; Templeton v. Beard, 159 N.C. 63, 74 S.E. 735. But the power of a justice of the peace to fix and award attorneys' fees is a more serious question. We know of no statute authorizing justices of the peace to fix and award attorneys' fees in any proceeding. Nor can it be held that a justice of the peace has the inherent or equitable power to fix and award such fees. A justice of the peace has no equitable powers, Moore v. Wolfe, 122 N.C. 711, 30 S.E. 120, and the inherent powers of a court do not increase its jurisdiction but are limited to such powers as are essential to the existence of the court and necessary to the orderly and efficient exercise of its jurisdiction. 14 Amer.Jur., Courts, sec. 171 p. 370. Neither can it be held in this jurisdiction that the award of attorneys' fees may be taxed as costs, Parker v. Realty & Insurance Co., 195 N.C. 644, 43 S.E. 254, and the cases there cited. Nor is Bank v. Appalachian Land & Lumber Co., 128 N.C. 193, 38 S.E. 813, an authority to the contrary, as contended by the appellees.

It must be conceded that courts of competent jurisdiction, in the exercise of chancery powers or by express statute, may make allowance for attorneys' fees in certain cases. The award, however, is not usually made as a penalty or forfeiture, but ordinarily is awarded out of the funds in the custody of the court or out of the sum recovered as a result of the litigation in which the attorney was employed. In re Will of Howell, 204 N.C. 437, 168 S.E. 671, cited with approval in 20 C.J.S., Costs, § 218, at page 457; In re Stone, 176 N.C. 336, 97 S.E. 216.

The appellees contend that the court has express authority to fix and award reasonable attorneys' fees, pursuant to the provisions of the Emergency Price Control Act of 1942, 50 U.S.C.A., Appendix § 925(e), the pertinent part of which reads as follows: "If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or...