171 S.E. 614 | N.C. | 1933
Civil action with ancillary remedy of claim and delivery to recover possession of "two mouse-colored mules: one 2-horse wagon and harness: *429 one mower and one rake," instituted in the recorder's court of Zebulon and Little River Township, and tried de novo on appeal to the Superior Court of Wake County.
The complaint alleges that plaintiff is the sole owner of the property described in the complaint, but on trial in the Superior Court, evidence was offered tending to show that plaintiff and her son, R. I. Barham, acquired the property in question under her husband's will, and that they owned the same as tenants in common.
The value of the property is not alleged in the complaint, nor is the affidavit in claim and delivery set out in the record. It is recited that the defendant replevied and retained possession of the property, but the forthcoming bond does not appear, and the amount of it is not stated.
The defendant claims sole ownership in himself and offered evidence tending to show that he purchased said property from plaintiff's son, R. I. Barham.
The jury returned the following verdict:
"1. Is the plaintiff the owner of and entitled to the possession of the property described in the complaint? Answer: Yes.
2. What was the value of the property described in the complaint at time it was seized by the sheriff? Answer: $115.00. (Mules $150.00: wagon and harness $40.00; rake and mower $40.00 — total $230.00. One-half $115.00.)"
Judgment on the verdict that plaintiff recover of the defendant "one of the mules described in the complaint and one-half of the other personal property."
The defendant objected to the judgment and moved to dismiss the action for want of jurisdiction, and because one tenant in common of personal property cannot maintain an action against a cotenant for the possession of said property. Overruled; exception.
The defendant then objected to the judgment on the ground that it is indefinite, uncertain and incapable of execution. Overruled: exception.
Defendant appeals, assigning errors. 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. 409, 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,
The jurisdiction of the Superior Court on appeal is derivative only(Ijames v. McClamroch,
But 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,
The objection to the judgment that it is uncertain and incapable of execution appears to be well taken. Carter v. Elmore,
The judgment was doubtless drawn by counsel and submitted for the court's signature, as is customary on the circuit.
Reversed.