Brantley v. . Finch, 1 S.E. 535

Brantley v. . Finch

1 S.E. 535 | N.C. | 1887

^* JUSTICE DAVIS having been of counsel, took no part in the decision of this case. (Froelich v. Express Co., 67 N.C. 1; Wiseman v. Withrow, 90 N.C. 140;Norville v. Dew, 94 N.C. 43; cited and approved.) This action was begun before a justice of the peace, to recover $200, which the plaintiff alleges that the defendant's intestate, in his lifetime, *90 owed him for services rendered. On the trial before the magistrate, the plaintiff exhibited a statement of account, as follows:

"GRIFFIN BIRD to M. BRANTLEY, Dr.

"15 January, 1876. For services as his agent, etc., till the fall of 1884 (without intermission) ................................... $225.00 "Interest from 1 December, 1884 .................. 13.50 ------- $238.50 "Credit this account of principal ................ 25.00 ------- "Balance due for services ........................ $213.50."

The following is the material part of the case settled on appeal:

The summons and the transcript (of the justice) both say that the sum demanded was $200.

The account (above set forth) was sent up by the justice, and it was conceded that it was presented before the justice by the plaintiff, on the trial.

(93) The plaintiff testified, that when he presented it, he stated to the justice that he did not claim but $200 on said account; that $25 had been credited on the principal, and that he claimed no more than $200. No remittitur was entered by the justice. Plaintiff testified that his services were worth $25 per year on an average.

The court charged the jury, that if the debt was over $200 the plaintiff could not recover; but that if not over that amount, and plaintiff had claimed no more than that amount before the justice, that the justice had jurisdiction, and plaintiff could recover what the jury considered the services were worth.

Before entering upon the trial, and after the return of the verdict, the defendant moved that the action be dismissed for want of jurisdiction, there being no remittitur as prescribed by statute. Motion each time overruled.

Judgment was rendered on the verdict, and the defendant appealed. We are of opinion that the justice of the peace had jurisdiction. It is the sum demanded in an action on contract that determines the question in that respect. Froelich v. Express Co., 67 N.C. 1; Wiseman v. Withrow,90 N.C. 140; *91 Noville v. Dew, 94 N.C. 43. The plaintiff did not demanded by the summons, nor insist on the trial, that the intestate of the defendant, in his lifetime, owed him a greater sum than two hundred dollars, and the justice of the peace had jurisdiction of that sum.

The "account" stated and exhibited on the trial, was a mere memorandum — it was not evidence of indebtedness — it did not determine or fix the plaintiff's demand, nor the liability of the defendant. He might — it seems he did — change his opinion in respect to the (94) value of his alleged services rendered, and the jury found by their verdict that they were not worth the sum he demanded. It is only when the principal sum demanded exceeds two hundred dollars, that the plaintiff shall remit the excess of principal above that, in order to give the justice of the peace jurisdiction, as prescribed and allowed by the statute (The Code, sec. 835). The plaintiff did not need to remit any part of his claim, because it amounted to only two hundred dollars, and he recovered less than that sum.

The judgment must be affirmed.

No error. Affirmed.

Cited: Cromer v. Marsha, 122 N.C. 565; Knight v. Taylor, 131 N.C. 85;Teal v. Templeton, 149 N.C. 34; Petree v. Savage, 171 N.C. 439;Shoe Store Co. v. Wiseman, 174 N.C. 717; Williams v. Williams, 188 N.C. 730.