Powell v. . Allen

Merrimon, J. (after stating the case). It is not alleged that the judgment of restitution and the alternative judgment mentioned in the complaint, before it was amended, were in any respect improper or subject to valid objection. Indeed, inasmuch as the Justice of the Peace decided that he had no jurisdiction of the cause of action and dismissed the action, it was his duty to require the property, improperly seized and placed in the possession of the plaintiffs in that action, to be restored to the defendants therein, and in case of default in this respect that the value of the property be paid to them. The Court could not allow an improper and illegal use and abuse of its authority and process to prejudice a party, nor will it allow the moving party in such case to take advantage thereby. It will, on the contrary, and it is its duty, as far as practicable, to restore the parties to the same Status *49 in all respects that each had when the authority of the Court was at first improperly exercised, and its process operative. Nor will the Court delay to do so, or allow its purpose to be-obstructed in am' way; its integrity, duty, and absolute fairness in all things alike prompt it to such a remedial course of action. Nor will it proceed to administer the rights of the parties until such restitution shall be made. Perry v. Tupper, 71 N. C., 385; Manix v. Howard, 82 N. C., 125. The Court, therefore, properly refused to grant the injunction as demanded by the complaint. It appears from the amended complaint, that the plaintiffs paid the defendants one hundred and fifty-eight dollars and seventeen cents in discharge of the alternative judgment mentioned, and they allege that the money thus paid belongs to them, and they seek to recover the same in this action. There are two inseparable obstacles that prevent such recovery : First, the Superior Court did not have original jurisdiction of the sum of money demanded. It being less than two hundred dollars, was within the exclusive jurisdiction óf the Court of a Justice of the Peace. This action is not brought to recover the property mentioned — the plaintiffs have that in their possession — but the money which they allege they ought not to have been required to pay, and therefore, the defendants have it as money had and received to their use. Waiving all possible tort, they contend that the law implies a contract or promise on the part of the defendants to pay them the money. The demand is not, therefore, for a tort, in any possible view of it, of which the Superior Court has jurisdiction. Wimlow v. Weith, 66 N. C., 432 ; Latham v. Rollins, 72 N. C., 454 ; McDonald v. Cannon, 82 N. C., 245; Barbank v. Commissioners, 92 N. C., 257. Secondly, the cause of action arose after the action began. It appears from the allegations of the amended complaint, that the money which the plaintiffs paid to the defendant, ' *50 and which they seek to recover, was paid sometime after this action was brought. It is settled that, ordinarily, the cause of action must have existed at the time the action began. Moreover, the introduction of such new cause of action could not be allowed, the defendant objecting, because it changed the action and made it substantially a new one. This could not be allowed. Kramer v. Electric Light Co., 95 N. C. 277; Clendenin v. Turner, 96 N. C., 416; Glover v. Flowers, 101 N. C., 134; Bynum v. Commissioners, ibid., 412. No error. Affirmed.