Norvell v. Mecke.

MONTGOMERY, J. Tbe defendant executed to tbe plain-diff, as receiver of tbe Valleytown Mineral Company, a receipt in writing for certain personal property, embracing a large number of articles, wliicb be agreed to keep for tbe plaintiff, and to return to tbe plaintiff wben called for. Tbe property was worth $100. Upon failure of defendant to deliver tbe whole of tbe property wben called for by tbe plaintiff, tbe plaintiff brought this action before a Justice of tbe Peace to recover certain mentioned of tbe articles of property, of tbe value of $50. Tbe action was dismissed by the Justice of the Peace upon the ground that it appeared that tbe plaintiff bad broug'ht another action in the Justice’s Court for tbe balance of tbe property mentioned in the receipt, which was still pending, and that this course was a fraud upon the jurisdiction of bis Court. Tbe plaintiff appealed to tbe Superior Court. In tbe case on appeal this statement appears : “It was admitted that on tbe same day this action was begun tbe plaintiff began another action before the same Justice to recover the possession of all tbe property embraced in said receipt not included in the summons in tbe action tried, that the aggregate value of the property in both actions ivas $100, and that the purpose of the plaintiff in bringing two actions before a Justice of tbe Peace was to avoid bringing an action in tbe Superior Court.” Thereupon the defendant made a motion to dismiss the action upon the ground .that the same was an attempt to evade the Constitution of the *403 State in its provisions respecting tbe jurisdiction of tbe courts and tbe motion was sustained. If tbe jurisdiction bad really been in tbe Justice of tbe Peace, then tbe plaintiff’s admission would bave been barmless, for bis motive would not and could not bave altered tbe law of jurisdiction. But tbe facts as they appear showed that tbe Justice did not bave jurisdiction. He had in bis court tbe two actions, and therefore had knowledge that tbe plaintiff was not seeking to recover a part of tbe property of the value of $50, or less, in good faith, as was the case in Kiser v. Blanton, 123 N. C., 400, of which be would bave bad jurisdiction, but that be was seeking to recover tbe whole of tbe property in two separate actions, under a paper-writing which was one and entire, and indivisible as a subject of a civil action. Tbe attempt to evade the constitutional jurisdiction of tbe Superior Court was therefore apparent. Tbe plaintiff, no doubt, could bave brought an action for certain articles of tbe property, of the value of $50 or less, in. tbe Court of the Justice of tbe Peace, and have recovered, because bis right to tbe property was not disputed; but be could have recovered none of tbe remaining part in another action, as tbe first recovery would be regarded as a release of that part to tbe defendant. No error.