Baer v. . McCall

Per Cueiam. In the finding of facts in the. court below is the following : “That when this cause came on for trial in the recorder’s court of Dunn the defendant, Jonah McCall, through his counsel, moved the court to dismiss the action for want of jurisdiction and demurred ore tenus to the jurisdiction of the court; that thereupon and prior to the dismissal of the case in the recorder’s court of Dunn plaintiff offered to withdraw and moved the court to be allowed to withdraw his count set up in the complaint for $200.00 as damages for the wrongful detention of the personal property seized under the claim and delivery issued in this action, and proceed with the trial on the count for $500.00 debt and possession of the personal property; that this motion of plaintiff was declined by the court on the ground that plaintiff had no right to withdraw said count and that the court did not have jurisdiction, and the case was dismissed on 2 January, 1936, and plaintiff appealed from said judgment and had his aj)peal properly docketed in the Superior Court of Harnett County.” On appeal in the Superior Court “plaintiff withdrew his count set up in the complaint for $200.00 for wrongful detention of the personal property, and the court proceeded to try the case on the count for $500.00 debt,” etc. The maximum jurisdiction of the recorder’s court of Dunn, N. C., either on contract or tort is $500.00. In Jones v. Palmer, 83 N. C., 303 (304), Ashe, J., said: “This is a suit brought for two causes of action or, in other words, an action containing two distinct counts, the one to recover a debt of fifty dollars and the other to recover specific property. It does not follow that because the magistrate had no jurisdiction of one count he therefore had none of the other. . . . But even if the magistrate had no jurisdiction of the second count he most clearly had of the first, and there is no reason why a want of jurisdiction or defect in the second count should deprive the justice of jurisdiction of the case. One bad count in a declaration never vitiates those that are good though, in such a case if there be a general verdict on both counts, no judgment can be rendered. Mitchell v. Durham, 13 N. C., 538; Honeycut v. Angel, 20 N. C., *393 449. . . . Tbe plaintiff bad tbe right to enter a nolle prosequi to either or all of tbe counts or causes of action in bis complaint. Sanders Bep., 207, note 2. His motion for leave to amend bis complaint and waive tbe second count was virtually asking leave of tbe. court to enter a nolle prosequi as to that count, a thing be bad tbe right to do without tbe leave of tbe court. His Honor committed an error in disallowing tbe motion of tbe plaintiff and dismissing tbe action. Tbe plaintiff bad tbe right to enter a nolle prosequi as to tbe second count and proceed on tbe first.” We think this case is governed by tbe Jones case, supra. Tbe facts in Perry v. Pulley, 206 N. C., 701, are distinguishable. We think tbe court correct in refusing to set aside tbe judgment on tbe ground of mistake, surprise, and excusable neglect. N. C. Code, 1935 (Michie), sec. 600. Tbe facts found show clearly no mistake, surprise, and excusable neglect. Tbe judgment of the court below is Affirmed.