Singer Sewing Mach. Co. v. Burger

• Decision Date: 20 April 1921
• Docket Number: 587.
• Parties: SINGER SEWING MACH. CO. v. BURGER ET AL.
• Court: North Carolina Supreme Court

107 S.E. 14

181 N.C. 241

SINGER SEWING MACH. CO. v. BURGER ET AL.

No. 587.

Supreme Court of North Carolina

April 20, 1921

Appeal from Superior Court, Cherokee County; Bryson, Judge.

Action by the Singer Sewing Machine Company against I. P. Burger and another. From a judgment granting affirmative relief to defendants, plaintiff appeals. No error.

Allen and Walker, JJ., dissenting.

Civil action commenced to recover a horse, plaintiff claiming under what is in substance a mortgage, executed by the defendant to secure the purchase price, on which there was a balance due of $37. The defendant denied the right to recover, pleaded payment, and alleged that the plaintiff was indebted to him in the sum of $193, due by contract for feed of another horse, and commissions for services while acting as plaintiff's agent. The plaintiff demurred to the allegations of indebtedness in the answer, upon the ground that the superior court had no jurisdiction thereof, the sum demanded being less than $200, which was overruled, and the plaintiff excepted. The plaintiff also filed a reply, denying indebtedness to the defendant, and pleading the three-year statute of limitations. The jury returned the following verdict:

"(1) Is the defendant, I. P. Burger, indebted to the plaintiff as alleged in the complaint; and, if so, in what amount? Yes: $37.00.

(2) Is the plaintiff indebted to the defendant, I. P. Burger, as alleged in the answer and counterclaim for commissions, and if so, in what amount? Yes: $63.00.

(3) Is the plaintiff indebted to I. P. Burger for feed and keep of horse as alleged in the answer and counterclaim, and, if so in what amount? Yes: $45.00."

His honor then rendered judgment in favor of the defendant for $71, and the plaintiff excepted and appealed.

Dillard & Hill, of Murphy, for appellant.

STACY J.

In actions to recover personal property, the jurisdiction of the superior court is concurrent with that of a justice of the peace when the value of the property does not exceed $50 (C. S. 1474), and exclusive when the property in controversy is worth more than that sum. Houser v. Bonsal, 149 N.C. 51, 62 S.E. 776; Noville v. Dew, 94 N.C. 44. The superior court also has jurisdiction of actions to foreclose a mortgage, although the debt secured is less than $200, because "the action is not founded on the contract merely, but on an equity growing out of the relation of mortgagor and mortgagee to have the mortgaged premises, in case of default, sold for the satisfaction of the secured debt." Murphy v. McNeill, 82 N.C. 224. It follows, therefore, that the court had jurisdiction of the cause of action alleged in the complaint, whether treated as one to recover personal property or to foreclose a mortgage. The amount of plaintiff's claim was found to be correct, $37, while defendant was awarded a verdict on his counterclaim of $108. The court entered judgment, for the difference of $71, in favor of the defendant. Plaintiff appeals, assigning as error his honor's refusal to sustain a demurrer to the counterclaim, on the ground that the sum demanded, being less than $200, was not within the jurisdiction of the superior court.

It is not denied that the plaintiff's cause of action is cognizable in the superior court, and that the defendant is entitled to judgment on his counterclaim, provided the court has authority to grant such relief. It is further conceded that the defendant may use his counterclaim as a bar or defense to plaintiff's suit. But is he entitled to an affirmative judgment for the excess over and above the plaintiff's claim? This is the question for decision. The Constitution of 1868 (article 4, § 33) provided that--

"The several justices of the peace shall have exclusive original jurisdiction, under such regulations as the General Assembly shall prescribe, of all civil actions, founded on contract, wherein the sum demanded shall not exceed two hundred dollars, and wherein the title to real estate shall not be in controversy," etc.

But the words "exclusive original" were omitted from this section by the convention of 1875; and it now appears as article 4, § 27. Since this amendment, it has been held that the General Assembly may give to other courts, including the superior courts, concurrent jurisdiction in such cases. State v. Anderson, 80 N.C. 429; Rhyne v. Lipscombe, 122 N.C. 650, 29 S.E. 57. This authority has been exercised very generally by the Legislature in granting county courts and city courts concurrent jurisdiction with justices of the peace. Also it has been held that these courts may be given exclusive original jurisdiction of certain crimes, committed within the corporate limits of a city, which were originally cognizable before a justice of the peace. State v. Doster, 157 N.C. 634, 73 S.E. 111; State v. Baskerville, 141 N.C. 811, 53 S.E. 742.

While it is true sections 12 and 14, article 4, of the Constitution provide for an allotment and distribution of certain powers among these inferior courts, recorder's courts, etc., yet these "special courts," as they were designated originally in the Constitution, were not given concurrent jurisdiction with justices of the peace in civil matters until after the change of 1875. Oil Co. v. Grocery Co., 169 N.C. 521, 86 S.E. 338; State v. Lytle, 138 N.C. 738, 51 S.E. 66; Edenton v. Wool, 65 N.C. 379; Wilmington v. Davis, 63 N.C. 582. The convention, by several amendments, placed the matter again in the hands of the General Assembly. See Battle's History of the Supreme Court, 103 N.C. 475, and dissenting opinion in Mott v. Com'rs, 126 N.C. 866, 36 S.E. 330.

But has similar jurisdiction, in such cases, been given to the superior courts? This question must be answered in the negative, when dealing with the plaintiff's cause of action, or when considering the genesis of a suit. Shoe Store Co. v. Wiseman, 174 N.C. 716, 94 S.E. 452; Wooten v. Drug Co., 169 N.C. 64, 85 S.E. 140, and numerous other cases to like import. Exclusive original jurisdiction in civil actions, founded on contract, wherein the sum demanded, exclusive of interest, does not exceed $200, is vested in the several justices of the peace by the express provisions of C. S. 1473. This has been modified to some extent by subsequent legislation in which other courts have been given concurrent jurisdiction with these courts of first instance. But, unless thus affected by some different statute, every such suit must originate in the court of a justice of the peace.

The case at bar, however, presents the question in relation to a counterclaim, pleaded in an action already pending and properly brought in the superior court. The jurisdiction, so far as the plaintiff's suit is concerned, is not attacked. It is admitted.

In sections 519 and 521, Consolidated Statutes, under the title of Civil Procedure, it is provided that the following may be set up by way of counterclaim:

"1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action.

2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action."

Again C. S. 602, provides that the court may grant judgment in favor of the defendant for "any affirmative relief to which he may be entitled."

Under a proper construction of these statutes, it would seem that the judgment below on the verdict should be affirmed.

We are not here confronted with a constitutional barrier as in Cheese Co. v. Pipkin, 155 N.C. 394, 71 S.E. 442, 37 L. R. A. (N. S.) 606 (and similar cases), where the defendant undertook to set up in the magistrate's court, by way of counterclaim, a cause of action in excess of the limited jurisdiction of a justice of the peace. Nor does it appear that the decision in Wiggins v. Guthrie, 101 N.C. 661, 7 S.E. 761, is a controlling authority contra. In fact, no case has been found exactly in point which, under the doctrine of stare decisis, would require us to hold in accordance with the plaintiff's contention. On the other hand, the opinion in McClenahan v. Cotten, 83 N.C. 332, satisfactorily states the reasons for sustaining the judgment appealed from in the instant case. After discussing the sections of the Code, relating to defenses and counterclaims, and comparing the old practice with the new procedure, Dillard, J., speaking for the court, says:

"The question now arises, how may a party use and rely on his cross-demand? The answer is, he may plead it or not at his will, but if he elect to plead it, he may do so, and then, if it be equal to or greater than the opposing demand, he may plead it in bar, as formerly, or plead it as a defense, so called, under the Code, the plea or defense having the operation merely to defeat the action, and not to admit of any judgment for an excess, or he may, if he will, instead of pleading it as a bar merely, set up his demand under the name and with the proper prayer of a counterclaim as introduced by the Code, and then the defendant will have judgment for the excess."

In Wiggins' Case, the plaintiff recovered $639.65. The defendant was allowed to use his counterclaim as a recoupment in reducing the plaintiff's demand, the court saying:

"This accorded to the defendant all the benefit to which he was entitled, and he should be content in being allowed to use it for this purpose. But the objection disappears in presence of the fact that precisely the same purpose was subserved whatever name be given to the defense. Inasmuch as the plaintiff recovered a much larger sum, whether a counterclaim, recoupment, or set-off, the opposing demand, if allowed by the jury, would necessarily be in effect a

...