Kiser v. Blanton
| Decision Date | 23 December 1898 |
| Citation | 123 N.C. 400,31 S.E. 878 |
| Court | North Carolina Supreme Court |
| Parties | KISER et al. v. BLANTON. |
Review—Plaintiff's Appeal—Exception by Defendant—Actions — Chattel Mortgagee —Splitting Cause of Action.
1. An exception by defendant will not be considered on plaintiff's appeal
2. Where a chattel mortgagee sues for possession of the property after default and a refusal to deliver, it is an action for possession of the property, and not an action in contract.
3. A chattel mortgagee, after default and a refusal to deliver the mortgaged property, may sue for a part of the articles included in the mortgage.
Appeal from superior court, Lincoln county; Greene, Judge.
Action by W. C. Kiser & Co. against G. Blanton.' There was a judgment for defend' ant, and plaintiffs appeal. Error, and new trial ordered.
S. G. Finley, for appellants.
This action was commenced before a justice of the peace by the plaintiff mortgagee against the defendant mortgagor for the possession of a horse and a cow conveyed in the mortgage. The debt secured was $21, and the property sued for was found by the jury to be worth $17. The plaintiff gave bond under the statute (Code, § 322 et seq.), upon which he obtained an order for possession, and the property was taken thereunder and delivered to the plaintiff. On the return day of the summons the defendant appeared before the justice of the peace who issued the summons, and filed an affidavit, under the statute, alleging that he did not believe he could obtain justice before the magistrate who issued the summons, and the case was removed for trial to another magistrate. The defendant entered a special appearance before the justice to whom the case had been removed, and there moved to dismiss for the reason that service had not been properly made. The court overruled this motion, and proceeded to trial and judgment, from which the defendant appealed to the superior court. In this court the defendant again entered a special appearance and again moved to dismiss for the same reason that he had moved to dismiss before the justice of the peace. The motion was overruled by the Judge upon the ground that any want of proper service had been waived by defendant's appearingand filing an affidavit, and having moved for trial, and the defendant excepted. During the progress of the trial it appeared that other property was included in the mortgage, besides the horse and the cow sued for in this action, and that the whole of the property conveyed in the mortgage was worth more than $50. Upon this fact being made to appear to the court, the defendant again moved to dismiss the action, for this reason, alleging that it was splitting up the plaintiff's claim for the purpose of acquiring jurisdiction, and for that reason was a fraud upon the jurisdiction of the court. The court allowed this motion, dismissed the plaintiff's action, and the plaintiff excepted and appealed, but the defendant did not appeal.
As the defendant did not appeal, his exception to the court's refusing to dismiss the action upon his first motion (for want of proper service) cannot be considered on this appeal. But his second motion, and the ruling of the court thereon, from which the plaintiff appealed, it is contended, raise the question of jurisdiction; and, to determine this question, it is necessary to consider the character of the action, —whether it is upon contract or in tort. If it is an action on contract (the note) which is for $21, and the proceeding in claim and delivery is ancillary to that, it is held that the justice would have jurisdiction of the action on the note, whether he had jurisdiction of the claim and delivery proceeding or not, and that the action should not have been dismissed. Hargrove v. Harris, 116 N. C. 418, 21 S. E. 916. But this would not give the plaintiff the relief he wanted, —the possession of the property. He would be no better oft with a personal judgment against the defendant, and nothing more, than he would be if he had no...
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Hamilton v. Hilands
... ... term of credit having expired. Moore v. Hurtt, 124 ... N.C. 27, 32 S.E. 317; Hinson v. Smith, 118 N.C. 503, ... 24 S.E. 541; Kiser v. Blanton, 123 N.C. 400, 31 S.E ... 878. But whether he or the defendant has the possession, the ... property must be delivered, on demand, to ... ...
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...filing of an affidavit for removal of a case from one justice to another is a waiver of defects in the service of process. Kiser v. Blanton, 123 N.C. 402, 31 S.E. 878. failure to plead to the jurisdiction involving the right of a judge to preside at a court is a waiver of the court's right ......
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...87 N.C. 334; Dougherty v. Sprinkle, 88 N.C. 300; Wilson Cotton Mills v. Randleman Cotton Mills, 116 N.C. 647, 21 S.E. 431; Kiser v. Blanton, 123 N.C. 400, 31 S.E. 878; Levin v. Gladstein, 142 N.C. 482, 55 S.E. 371, 32 R. A. (N. S.) 905, 115 Am. St. Rep. 747. In McAdoo v. Callum, 86 N.C. 419......
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