Montague v. Brown

• Decision Date: 04 November 1889
• Citation: 10 S.E. 186,104 N.C. 161
• Parties: MONTAGUE v. BROWN.
• Court: North Carolina Supreme Court

10 S.E. 186

104 N.C. 161

MONTAGUE v. BROWN.

Supreme Court of North Carolina

November 4, 1889

This was a civil action, begun before a justice of the peace, and brought by appeal to the superior court of Wake county, tried before GRAVES, J., at February term, 1889. There was verdict and judgment for plaintiff, and defendant appealed. There was no exception to any part of the trial before GRAVES, J., and the purpose of this appeal is to have reviewed the judgment of SHIPP, J., in refusing to dismiss for want of jurisdiction, and also to review the ruling of GRAVES, J., in refusing to dismiss the action for want of jurisdiction. On the motion before GRAVES, J., it appeared that SHIPP, J., had refused to dismiss the action for the cause assigned, and that defendant then excepted; although no entry on the record showed that motion to dismiss had been overruled, and no entry on the record showed any exception then entered. It appearing before GRAVES, J., that SHIPP, J., had in fact overruled defendant's motion to dismiss, GRAVES, J refused to entertain the motion made to dismiss for the same reason, on the ground that the matter had been adjudicated by his predecessor; to which defendant excepted. The parties agree to the following statement: "On the trial before Judge SHIPP, the defendant, for the purpose of showing that the court did not have jurisdiction of this action, after objection by plaintiff, offered in evidence the record of a suit brought in the superior court of Wake county by plaintiff against defendant, in which a judgment of nonsuit was taken; and defendant showed, after objection by plaintiff, that plaintiff procured a summons in this action to be issued before the nonsuit on the same day, and that the summons was served by plaintiff upon the defendant in this bar of this court immediately after the nonsuit was entered. The defendant then offered to show that the suit brought in the superior court was for the same cause of action as this case: that it was placed on the calendar at the October term 1886, of this court ; that when it was called for trial the plaintiff immediately took a nonsuit; that before taking the nonsuit he had obtained from a justice of the peace the warrant in this action; that the officer holding such warrant was within the bar of this court, when such nonsuit was entered, for the purpose of serving it on the defendant; that he immediately served said warrant on the defendant, who was and is a resident of Buncombe county, and who had come to Raleigh for the purpose of defending said action, and for no other purpose, and before defendant could get out of the bar that in each case-the one in which a nonsuit was taken, and the one now on trial*plaintiff includes, as part of his claim for damages, $35, the fee paid by him to counsel in the action of De Graffenreidt against Montague and Lee, in this court, in which a recovery was had in favor of De Graffenreidt. It was in evidence that the plaintiff Montague, in the suit in which the nonsuit was taken in the superior court, honestly believed, at the time the suit was brought, that he was entitled to recover the amount of the attorney's fee, $35, as a part of his damages, and that he was so advised by counsel before the suit was commenced and after the said case was set for trial in the superior court, upon investigation, counsel advised him that he could not recover the attorney's fee, and advised the taking of the nonsuit. That the first suit was bona fide, and not intended for the purpose of bringing the defendant to Raleigh, and then to sue him in a justice's court." Upon the trial before Judge GRAVES, the defendant's counsel expressly disclaimed any intention of fraud upon the jurisdiction of the court, and stated that he would only contend upon the other ground; that is, the pendency of the suit at the time the summons was issued by the justice of the peace. The defendant insisted, before Judge SHIPP, that the magistrate had no jurisdiction, and that this court had none, because this suit is for the same cause of action as that pending in the superior court at the time the warrant was issued in this action. Judge SHIPP refused to admit the testimony offered by defendant for the purpose offered, or to submit any issue to the jury with the view of finding the facts on which the question of jurisdiction might arise, to which defendant then excepted. The only entry on the record in reference to the plea to the jurisdiction, and the proceedings upon the motion to dismiss before Judge SHIPP, is as follows, viz.: "This cause coming on for trial, plaintiffs moved the court for a continuance upon affidavit that witnesses are absent. Defendant admitted the affidavit, and thereupon moved that the cause be dismissed for want of jurisdiction of this court. Question of jurisdiction reserved." Following this entry at the April term is the record of a trial of the issues by jury, and a verdict thereon, and the granting of a new trial, on motion of the defendant, by the presiding judge. The record proper does not now show that the motion to dismiss was ever in fact heard before Judge SHIPP, and there is no record of any exception to his ruling on the question of jurisdiction. It does not appear that the parties filed written pleadings, and the...