Morris and Hopson v. . O'Briant

Ashe, J. (after stating the case). The only points raised by the record, are to the refusal of the Court to dismiss the action for want of jurisdiction, and to grant a new trial. In neither of which rulings of the Court do we find any error. *75 The defendant’s motion to’dismiss the action for want of jurisdiction in the justice, is founded upon the idea that the action is claim and delivery, and the value of the property claimed is more than fifty dollars. But this is a misconception of the plaintiff’s action. The fact that the plaintiff filed an affidavit and obtained an order of seizure of the property described in the affidavit, does not necessarily make it an action of claim and delivery. In ascertaining whether a justice of the peace has jurisdiction of a cause of action-in his Court, the question must be determined by the summons and complaint, and especially by the former, as has been frequently decided by this Court — Noville v. Dew, decided at this term, and cases there cited — and the reason is, because the pleadings in that Court are usually oral and are not required to be in writing. In this case, the summons was to answer the complaint of the plaintiff for the non-payment of the sum of eighty dollars, due by contract, and the complaint alleges that defendant has paid no rent to the plaintiffs or their intestate, and that the amount of rent due for the year 1883, is eighty dollars, and judgment is demanded for the sum of eighty dollars. It is an action on contract, and the fact that the plaintiffs had resort at the same time to the provisional remedy of claim and delivery, cannot have the effect of changing the character of the action. This point was expressly decided in the case of Deloatch v. Coman, 90 N. C., 186, where it was held, that an action by a landlord against a tenant for the recovery of rent, the sum demanded not exceeding two hundred dollars, is an action upon the contract of lease, and cognizable in the Court of a justice of the peace. The jurisdiction cannot be ousted by a demand on the part of the plaintiff for relief which such court has not jurisdiction to give, as a seizure of the crop on the landlord’s lien, under claim and delivery. It must therefore follow, that when the action, as in this case, is one on contract, and the provisional remedy of claim and delivery is at the same time resorted to by the plaintiffs, it is immaterial whether the value of the property seized or sought to be seized is of more *76 or less value than fifty dollars, for in such a case, the justice has no right to take cognizance in that connection of the proceeding of claim and delivery, and his action in that respect is extrajudicial. This disposes of the question of jurisdiction. The motion for new trial upon the ground that the Court excluded the evidence of the witness Hobson upon the question of betterments, was properly overruled by the Court, upon the ground that the evidence was not applicable to any issue submitted to the jury, and no such issue was warranted by the pleadings. The evidence proposed was therefore irrelevant, and there was no error in excluding it. We find no error, and the judgment of the Superior Court is affirmed. No error. Affirmed.