Burrell v. . Hughes

21 S.E. 971, 116 N.C. 430

• Court: Supreme Court of North Carolina
• Decided: February 5, 1895
• Status: Published

Opinion

Eaircloth, C. J.:

The plaintiff instituted this action on defendant’s official bond for four penalties, in $100 each, for failing to serve process. The summons was issued in the name of the plaintiff “Dennis Burrell,” and the amended complaint declared in the name of the “State on relation of Dennis Burrell,” the plaintiff.

The defendant moved to dismiss the action and demurred because of the discrepancy in the summons and amended complaint and for want of jurisdiction in the Superior Court.

A motion to dismiss for want of jurisdiction or because the complaint does not state a cause of action is not such a demurrer ore tenus as will permit an appeal from its refusal. Joyner v. Roberts, 112 N. C., 111.

The demurrer not only raises issues upon matters alleged in the complaint, but sets forth other matters which can only be presented by answer, and therefore cannot now be considered. The discrepancy in the summons and the amended complaint is not a material matter, and has been permitted. Jackson v. Maultsby, 78 N. C., 174; Warrenton v. Arrington, 101 N. C., 109. The person suing for a penalty is the proper party plaintiff, and not the State, unless so expressed in the statute. Middleton v. Railroad, 95 N. C., 67; Sutton v. Phillips, at this term. A party suing for penalties against the same defendant may unite several such causes of action in the same complaint, and if they exceed $200 the Superior Court will have jurisdiction. Maggett v. Roberts, 108 N. C., 174. Oar conclusion is that his Honor, in sustaining the demurrer, committed error.

Reversed.