City of Wilmington v. Schutt

Supreme Court of North Carolina

City of Wilmington v. Schutt

45 S.E.2d 364, 228 N.C. 285, 1947 N.C. LEXIS 320

CourtSupreme Court of North Carolina

DecidedDecember 10, 1947

StatusPublished

Cited by7 cases

This text of 45 S.E.2d 364 (City of Wilmington v. Schutt) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Wilmington v. Schutt, 45 S.E.2d 364, 228 N.C. 285, 1947 N.C. LEXIS 320 (N.C. 1947).

Pincite

Opinion

BarNhill, J.

A justice of the peace has no equity jurisdiction, and when the remedy sought in a suit on contract is, in whole or in part, equitable in nature the action must be instituted and maintained in the Superior Court, irrespective of the amount in controversy. McIntosh, P. & P., sec. 62, p. 60; Kiser v. Blanton, 123 N. C., 400; Sewing Machine Co. v. Burger, 181 N. C., 241, 107 S. E., 14; Grocery Co. v. Banks, 185 N. C., 149, 116 S. E., 173.

When the amount sought to be recovered in such an action is less than $200, “it is not now required that the debt should be first reduced to judgment, as a creditor may join in one action a proceeding to recover a judgment for the amount of his debt and another to subject property to the payment thereof . . .” Grocery Co. v. Banks, supra.

There is no rule which requires a plaintiff to set forth in his complaint the full contents of the contract which is the subject matter of his action or to incorporate the same in the complaint by reference to a copy thereof attached as an exhibit. Pie must allege in a plain and concise manner the material, ultimate facts which constitute his cause of action. G. S., 1-122; Patterson v. R. R., 214 N. C., 38, 198 S. E., 364; Wadeshoro v. Coxe, 215 N. C., 708, 2 S. E. (2d), 876; Barron v. Cain, 216 N. C., 282, 4 S. E. (2d), 618. The production of evidence to support the allegations thus made may and should await the trial.

The plaintiffs allege that defendants, by contract under seal, agreed that the amount due the plaintiffs should be and constitute a lien upon the lands of defendants described in the complaint. They seek not only to recover judgment on their debt but also to have the same adjudged a lien on specific property. Thus they seek an equitable remedy of which the Superior Court alone has jurisdiction.

It follows that the judgment of the court below must be

Reversed.

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BarNhill, J.

A justice of the peace has no equity jurisdiction, and when the remedy sought in a suit on contract is, in whole or in part, equitable in nature the action must be instituted and maintained in the Superior Court, irrespective of the amount in controversy. McIntosh, P. & P., sec. 62, p. 60; Kiser v. Blanton, 123 N. C., 400; Sewing Machine Co. v. Burger, 181 N. C., 241, 107 S. E., 14; Grocery Co. v. Banks, 185 N. C., 149, 116 S. E., 173.

When the amount sought to be recovered in such an action is less than $200, “it is not now required that the debt should be first reduced to judgment, as a creditor may join in one action a proceeding to recover a judgment for the amount of his debt and another to subject property to the payment thereof . . .” Grocery Co. v. Banks, supra.

There is no rule which requires a plaintiff to set forth in his complaint the full contents of the contract which is the subject matter of his action or to incorporate the same in the complaint by reference to a copy thereof attached as an exhibit. Pie must allege in a plain and concise manner the material, ultimate facts which constitute his cause of action. G. S., 1-122; Patterson v. R. R., 214 N. C., 38, 198 S. E., 364; Wadeshoro v. Coxe, 215 N. C., 708, 2 S. E. (2d), 876; Barron v. Cain, 216 N. C., 282, 4 S. E. (2d), 618. The production of evidence to support the allegations thus made may and should await the trial.

The plaintiffs allege that defendants, by contract under seal, agreed that the amount due the plaintiffs should be and constitute a lien upon the lands of defendants described in the complaint. They seek not only to recover judgment on their debt but also to have the same adjudged a lien on specific property. Thus they seek an equitable remedy of which the Superior Court alone has jurisdiction.

It follows that the judgment of the court below must be

Reversed.

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Bluebook (online)

45 S.E.2d 364, 228 N.C. 285, 1947 N.C. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-wilmington-v-schutt-nc-1947.

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