Ijames v. . McClamroch

Ashe, J. (after stating the facts). There were only two exceptions taken in the course of the trial, which are presented by the appeal for our review: 1st. To the ruling of His Honor in excluding the evidence proposed to be introduced by the defendants in reference to the *365 conversation Avith the plaintiff in regard to the amount of the money due on the bond, which he would need in settling the debts of his intestate’s estate. There is no possible view in which the evidence could haAm been admissible. It was no evidence of a payment or release, or in any sense a discharge of the obligation- — and if admitted it would have been immaterial and perfectly harmless. The second exception Avas to the action of the Court in striking the defence of counter-claim out of the defendants’ answer. There Avas no error in that ruling. The pleadings before the justice were oral. The defendants in that court pleaded set-off, but what they meant by such a plea, Ave had no means of forming any knoAvledge until the case was carried by appeal to the Superior Court, Avhere the pleadings Avere set out in writing, and by the AArritten pleadings in that court, we are informed what the defendants meant by the plea of set-off before the justice. It seems to have been in the contemplation of the defendants by their plea of set-off, to plead a counter-claim of money due to them by defendant as administrator of Jas. McClamroch, deceased, for balance of distributive shares in said decedent’s estate, and also for a balance of two hundred and six dollars due them on account of land belonging to them and some others, sold by him under a power of attorney given him by them for the purpose of raising money to pay the amount of their indebtedness to the estate of his intestate, for articles purchased at the administrator’s sale, and for other purposes. The consideration of the note in suit Avas a part, of the land so sold by the plaintiff. "VYe are of opinion that there Avas no error in the ruling of ITis Honor in striking out of the defendants’ answer the counter-claim set up by them in defence. The jurisdiction of the Superior Court in appeals from justice’s courts, is entirely derivative. If the justice in such cases has no jurisdiction of the action, the Superior Court can derive none by the appeal. Boyett v. Vaughan, 85 N. C., 363. *366 It was there held: “ It is the jurisdiction of the justice of the peace, which, on appeal, gives jurisdiction to the Superior Court; and of course, if the justice had no jurisdiction, the Superior Court could have none, ánd therefore, by allowing an amendment m the transcript which enlarges the cause of action beyond the jurisdiction of the justice, it must necessarily oust itself of jurisdiction.” The principle here decided is, that the Superior Court could not, by amendment, enlarge the cause of action beyond the limited jurisdiction of a justice. That being so, the converse of the proposition must be true, that the Superior Court cannot, by amendment, lessen the cause of action so as to give jurisdiction to the justice when the cause of action was originally in excess of his jurisdiction. From the written pleading in the Superior Court, we must assume that the counter-claim set up by the defendants in the justice’s court was two hundred and six dollars, for that was the sum of the demand set up as a counter-claim in the first answer filed by them, and also in their amended answer filed by leave of the court, in which they attempted to escape the objection to the jurisdiction by filing a remittitur to all of their demand in excess of two hundred dollars. But, as His Honor very correctly decided, the remittitur could not- be made in that court so as to give jurisdiction to the Superior Court over a matter of which the justice’s court, from which the appeal was taken, had no jurisdiction. There is no error. The judgment of the Sujjerior Court is therefore affirmed. No error. Affirmed.