Houser v. W.R. Bonsal & Co.

• Decision Date: 05 November 1908
• Citation: 62 S.E. 776,149 N.C. 51
• Parties: HOUSER v. W. R. BONSAL & CO.
• Court: North Carolina Supreme Court

62 S.E. 776

149 N.C. 51

HOUSER v. W. R. BONSAL & CO.

Supreme Court of North Carolina

November 5, 1908

Appeal from Superior Court, Anson County; E. B. Jones, Judge.

Action by George Houser, by next friend, Lizzie Oakes, against W. R Bonsal & Co. From a judgment of dismissal, plaintiff appeals. Reversed.

Plaintiff filed his complaint, and alleged that plaintiff had been injured by the wrongful negligence of the defendants, to his damage, $5,000. Defendants answered, denying negligence on their part, alleging that the damage suffered, if any, was nowhere near the amount alleged. Defendants further answered and averred that plaintiff, by his next friend, Robert Houser, who was father of plaintiff, had instituted an action to recover damages for the alleged wrong and injury before W F. Long, a justice of the peace, in the county of Richmond having jurisdiction of the claim, the amount demanded having been stated at $50, and that recovery for said sum was had in that action against the defendants, and same had been paid, and defendants pleaded said judgment in bar of any other or further recovery for the same wrong and injury. Plaintiff replied, and averred that said judgment had before the justice of the peace was void: (1) For that, plaintiff being a minor, Robert Houser, appearing in that action as next friend of plaintiff, had been appointed to that office, for that suit, by the clerk of the superior court, and not by the justice who tried the cause; (2) because said judgment was obtained and procured by fraud. On the hearing the judge dismissed plaintiff's action, holding: (1) That the justice of the peace had jurisdiction of the cause in which the judgment had been entered by him; (2) that the judgment of said justice, as it then stood, was a bar to any other and further recovery by plaintiff; (3) that same could only be assailed or impeached by direct proceeding instituted for the purpose. The plaintiff excepted and appealed.

Under the Constitution, providing that the General Assembly may give to justices of the peace jurisdiction of civil actions wherein the value of property in controversy does not exceed $50, and the statute giving jurisdiction to justices in like terms, a justice of the peace has jurisdiction of an action for personal injuries negligently inflicted, where the amount demanded is $50 or less.

J. W. Gulledge and W. E. Brock, for appellant.

Morrison & Whitlock, for appellee.

HOKE J.

In Duckworth v. Mull, 143 N.C. 461, 55 S.E. 850, it was held that the clause in the Constitution which provided that "the General Assembly may give to justices of the peace jurisdiction of other civil actions, wherein the value of the property in controversy does not exceed fifty dollars," and the statute giving jurisdiction to justices of the peace in like terms operates to confer upon said justices jurisdiction concurrent with that of the superior court of all actions of tort wherein the amount demanded in good faith for plaintiff's injury did not exceed the sum of $50, the court in that case, construing the words "property in controversy" as meaning "the value of the injury complained of, and involved in the litigation." And the opinion further decides that, where a plaintiff, in good faith, states or limits his demand, in actions of that character, at $50 or less, the justice has such concurrent jurisdiction, citing with approval Malloy v Fayetteville, 122 N.C. 480, 29 S.E. 880; Watson v. Farmer, 141 N.C. 452, 54 S.E. 419. No valid objection, therefore, can be made to the judgment of the justice of the peace, which rests solely on exceptions to his jurisdiction of the cause. And we are of opinion that the objection to the judgment, by reason of the method by which the next friend was appointed for the infant plaintiff, is not of itself sufficient ground to justify the court in treating the said judgment as a nullity, or in ignoring its effect on the rights of these parties, while it stands as the judgment of the justice's court. The Revisal of 1905, chapter Civil Procedure, title Parties, § 405, provides that in all actions or proceedings where there is no general or testamentary guardian, or when the suit is against such guardian, infant plaintiffs may appear by their next friend. And section 1473 provides: "That the chapter on civil procedure, respecting forms of actions, parties to actions, the time of commencing actions, and the service of process, shall apply to justice's courts." But in neither section, nor elsewhere in the statute law, so far as we can discover, is the special method indicated by which such next friend must be appointed. For this reason, no doubt, the superior court, acting under section 1541, Revisal 1905, conferring upon this court the right, for time to come, to prescribe rules of practice for the superior courts, have established a way by which the "next friend" shall be appointed in that court as follows: "In all cases where it is proposed that infants shall sue by their next friend, the court shall appoint such next friend, upon the written application of a reputable, disinterested person closely connected with such infant; but if such person will not apply, then upon the like application of some reputable citizen, and the court shall make such appointment only after due inquiry as to the fitness of the person to be appointed." 140 N.C. 683, 53 S.E. xiv, Rules of Practice of Superior Courts, No. 16. As stated, this is the rule to be followed in regard to actions and proceedings in the superior court; and we think the same care and circumspection required for such appointments in the superior court, as indicated in this rule, should be followed in courts of justices of the peace. But in reference to actions before justice's court, we think both the investigation into the fitness of the next friend, and the order appointing him, should be made by that officer. If it should be conceded...