Love v. Huffines

• Citation: 66 S.E. 304,151 N.C. 378
• Parties: LOVE et al. v. HUFFINES.
• Decision Date: 01 December 1909
• Court: United States State Supreme Court of North Carolina

(151 N.C. 378)
66 S.E. 304

LOVE et al.
v.
HUFFINES.

Supreme Court of North Carolina.

Dec. 1, 1909.

1. Justices or the Peace (§ 90^*)—Pleadings.

A plaintiff in a justice's court must, either in the summons or in the complaint, state substantially his cause of action, and defendant must in some way set forth his defense, though the form of the pleadings is disregarded.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. § 306; Dec. Dig. § 90.*]

2. Justices op the Peace (§ 91*)—Pleadtngs —Complaint—Sufficiency—Indebtedness.

The use of the word "indebtedness" in the statement of the cause of action in justice's court authorizes the inference that the cause of action is founded on contract and within the jurisdiction of the court, and not for the conversion of property not within the jurisdiction of the court.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 309, 310; Dee. Dig. § 91.*]

3. Justices of the Peace (§ 164*)—Appeal— Statutoky Proceedings.

A defendant in justice's court served notice of appeal on August 16th, the day of the rendition of the judgment for plaintiff. The appeal was filed in the clerk's office September 24th. A criminal term was held on August 22d, and a civil term on September 19th. The clerk's fee for docketing the case was not tendered or demanded, and the case was docketed by the clerk September 24th. Held, that defeudant failed to enforce compliance with Revisal 1908, § 1493, requiring the justice within 10 days after service of notice of appeal to make a return to the appellate court and file with the clerk thereof the papers, etc.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 619-623; Dec. Dig. § 164.*]

4. Justices of the Peace (§ 141*)—Appeal-Jurisdiction of Appellate Court.

Where the justice's court was without jurisdiction, the superior court on appeal acquires none.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 472-474; Dec. Dig. § 141.*]

[66 S.E. 305]

5. Justices of the Peace (§ 141^2-*)—Appeal-Jurisdiction—Consent.

Where the superior court acquired no jurisdiction of a case on appeal from justice's court, because the justice's court was without jurisdiction, the parties could not by cousent waive the want of jurisdiction.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. § 475; Dec. Dig. § 141.*]

6. Justices of the Peace (§ 161*)—Appeal-Irregularities—Waiver.

Where a plaintiff obtaining a judgment in justice's court appeared generally in the superior court on defendant's appeal when the case was called for the trial, and made no objection, and a jury was impaneled, and the court commenced the trial before the jury, he waived irregularities in the proceedings for the appeal, and he could not then obtain a dismissal of the appeal on the ground that defendant had not complied with the statutes governing appeals.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. § 598; Dec. Dig. § 161.*]

Appeal from Superior Court, Guilford County; Long, Judge.

Action by John L. Love and another against D. R. Huffines. From a judgment dismissing an appeal to the Superior Court from a judgment of a Justice's Court in favor of plaintiffs, defendant appeals. Reversed and remanded.

A. L. Brooks, for appellant.

Scott & McLean and John A. Barringer, for appellees.

WALKER, J. This is an action, originally commenced before a justice of the peace, to recover the sum of $194.78. We will say, in the beginning, that we do not approve the method of pleading, generally adopted in the state, of issuing a summons for a defendant merely requiring him to appear and answer a complaint upon a cause of action not stated in the summons, and not afterwards stated before the magistrate and recorded in his docket. We again call the attention of the profession to the provision of the statute that a plaintiff must somewhere, either in the summons or in the complaint before the justice, state substantially his cause of action, and the defendant must also set forth his defense in some way. The form of the pleadings is disregarded; but something must be done by the pleader (used in its technical meaning) to advise the court of the issues between the parties. The only allegation in this case is that $194.78 is due by the defendant and demanded by the plaintiff. It may be money due upon a broken contract or for the conversion of property, and, in the last case, the court would have no jurisdiction. We infer, from the use of the word "indebted, " that the cause of action is founded on contract, and therefore we will assume, upon this small bit of allegation, that the justice had jurisdiction; but we call...