It is true that, under the Code, the demand for relief is immaterial, and the court will give any judgment justified by the pleadings and proof.Knight v. Houghtalling, 85 N.C. 17; Stokes v. Taylor, 104 N.C. 394;Hood v. Sudderth, 111 N.C. 215; Sams v. Price, 119 N.C. 572; Adams v. Hayes, 120 N.C. 383. But upon inspection of the complaint this action is brought to recover an overpayment of $132.27 of interest, alleged to have been made by mistake and ignorance. The referee correctly held that there was no original jurisdiction of such action in the Superior Court. Holden v. Warren, 118 N.C. 326. The plaintiff then sought to treat it as an action to recover the penalty for usury of forfeiture of double the interest paid. Code, sec. 3836 (now amended by Laws 1895, ch. 69). But upon an allegation of overpayment of interest by mistake, no legal implication arises that the plaintiff is suing for the forfeiture of double the interest, and there is nothing in the complaint from which it can be inferred. The amount of interest paid is not even stated, only the amount of the overpayment which it is claimed was paid by mistake. In not sustaining the referee and dismissing the action there was error.
(373) The referee properly refused leave to amend (Code, sec. 422), so as to charge a cause of action for the penalty of double the interest. This being an entirely different cause of action and for a different amount, which was within the jurisdiction of the Superior Court, such amendment would have been "not to show, but to confer jurisdiction," and therefore not allowable, even under the present liberal system as to amendments. Clendenin v. Turner, 96 N.C. 416; King v. Dudley, 113 N.C. 167. Besides, to have allowed it might have had the effect to deprive the defendant of the benefit of the defense of the statute of limitations, which could have been used against a new action brought for the avowed purpose of recovering the penalty for usury (Roberts v. Ins. Co.,118 N.C. 429), and for that reason, also, the amendment could not be allowed. Gill v. Young, 88 N.C. 58; Henderson v. Graham, 84 N.C. 496;Cogdell v. Exum, 69 N.C. 464; Christmas v. Mitchell, 38 N.C. 535.
The Superior Court had no original jurisdiction of the cause of action stated in the complaint.
Action dismissed.
Cited: Whitaker v. Dunn, 122 N.C. 104; Pender v. Mallett, 123 N.C. 62;Goodwin v. Fertilizer Works, ib., 163; Baker v. Brem, 126 N.C. 370;Moore v. Moore, 130 N.C. 341; Voorhees v. Porter, 134 N.C. 597; Bolickv. R. R., 138 N.C. 371; McCullock v. R. R., 146 N.C. 317; Bradburn v.Roberts, 148 N.C. 219; Carson v. Bunting, 154 N.C. 534; Bryan v.Canady, 169 N.C. 583; Renn v. R. R., 170 N.C. 146; R. R. v. Dill,171 N.C. 177.