Barham v. . Perry

Stacy, O. J. The recorder’s court of Zebulon and Little River Township, Wake County, is a court of limited jurisdiction, both as to territory and subject-matter. Chap. 409j Public-Local Laws, 1915. In civil actions, its jurisdiction is confined to cases wherein the sum demanded does not exceed five hundred dollars on contract or two hundred fifty dollars in tort, with the right of appeal, as from a court of the justice -of peace, to the Superior Court of Wake County. Sec. 29. *430 It was said in Alexander v. Bateman, 1 N. C., 248, that “Whatever is claimed to be within the jurisdiction of an inferior court ought to be plainly shewn, as in pleading, nothing shall be intended within its jurisdiction unless it be expressly alleged.” And it is a rule of general observance that the total omission of an ad damnum clause in a complaint is fatally defective as against a demurrer or motion to dismiss for want of jurisdiction, when the action is brought in a court of limited jurisdiction. Nor is the deficiency cured by the verdict. 7 R. C. L., 1056. There was no motion to amend the complaint in this respect, which might have been allowed, if seasonably made. Note, 21 A. S. R., 621. The jurisdiction of the Superior Court on appeal is derivative only (Ijames v. McClamroch, 92 N. C., 362), hence it would appear that the motion to dismiss for want of jurisdiction should have been allowed. Put as the motion was not made until after judgment, it was properly denied on the second ground alleged, to wit, that one tenant in common of chattels cannot sue another for conversion of said chattels. While this is the general rule, there are exceptions to the rule as well established as the rule itself, e. g., in case of imminent destruction or loss of the property. Thompson v. Silverthorne, 142 N. C., 12, 54 S. E., 782; Shearin v. Riggsbee, 97 N. C., 216, 1 S. E., 770; Grim v. Wicker, 80 N. C., 343; Powell v. Hill, 64 N. C., 169; Doyle v. Bush, 171 N. C., 10, 86 S. E., 165; Waller v. Bowling, 108 N. C., 290, 12 S. E., 990; 12 L. R. A., 261, and note. And after judgment, the question not having been raised before, it would seem that, if permissible, as it is on the present record, the case should be ruled in favor of jurisdiction as upon one of' the exceptions. The objection to the judgment that it is uncertain and incapable of execution appears to be well taken. Carter v. Elmore, 119 N. C., 296, 26 S. E., 35. It is adjudged that plaintiff recover of defendant one of two mules without designating which one. It is further provided that she recover one-half of the other personal property described in the complaint without stipulating which half. Counsel for plaintiff assured us on the argument that he thought the parties could readily agree on a division of the property; that his client would be willing to take the wagon and give the defendant the mower and the rake and one of the mules or his choice of the mules. But on the day of division the defendant might say to the plaintiff: “You never said wagon to me a time.” Then, what would the sheriff or the executioner do ? In this dilemma, the position of plaintiff and defendant would be close akin to that of the two fabled hunters, who were unable to agree upon a division of the quarry of the day’s hunt, which consisted of a turkey, an opossum and a rabbit. “You take the possum and give me the turkey and the rabbit, *431 or I’ll take tbe turkey and give you tbe possum and tbe rabbit,” said tbe one. “You never said turkey to me a time,” was tbe reply of tbe other. Tbe judgment was doubtless drawn by counsel and submitted for tbe court’s signature, as is customary on tbe circuit. Reversed.