Wiseman v. . Witherow

Supreme Court of North Carolina

Wiseman v. . Witherow

90 N.C. 140

CourtSupreme Court of North Carolina

DecidedFebruary 5, 1884

StatusPublished

Cited by9 cases

This text of 90 N.C. 140 (Wiseman v. . Witherow) 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

Wiseman v. . Witherow, 90 N.C. 140 (N.C. 1884).

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Opinion

MbrriMON, J.

It is the sum of money demanded in the action upon the contract, express or implied, that determines the question of jurisdiction, in a case like the present one, but the law contemplates that the plaintiff will make his demand in good faith and with reasonable certainty, as to the amount in dispute, and with no purpose to evade or give the jurisdiction improperly.

If it manifestly appears to the court that the sum demanded is greater than was really due, and was so alleged for the purpose of giving the court jurisdiction, -when in truth and law it could not attach, then, in the language of the late Chief-Justice PearsON, in Froelich v. Express Co., 67 N. C., 1, “it is the duty of the court, ‘ ex mero motu, ’ to interfere and prevent an evasion of the constitution.”

In this case, the court below does not specify the particular ground'upon which the judgment dismissing the action for want of jurisdiction was founded, but we must presume, in view of the facts -appearing in the record, that it rested upon the ground that there was obviously a purpose to give the court jurisdiction, when the facts and the law arising upon them would not allow the same.

It seems to us that there were facts that warranted the action of the court. The plaintiff sued for §312, for feeding and lodging the defendant’s servant, at regular intervals, for a period embracing several years. Pending that time, the defendant from time to time paid on account of such running indebtedness sun *142 dry sums of money, thus discharging the sámelo tanto, until, at the time the action was brought, he owed her only the sum of $58.75. This appears from the plaintiff’s own showing.

Pier daughter, under her direction, kept the account, and she knew or could have known what sum was due her. It was not fair or proper to allege that so large a sum was due, when in fact, within her knowledge, so small a one was due.

We think the court was warranted in giving the judgment-appealed from. There is no error and the judgment must be affirmed.

No error. Affirmed.

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MbrriMON, J.

It is the sum of money demanded in the action upon the contract, express or implied, that determines the question of jurisdiction, in a case like the present one, but the law contemplates that the plaintiff will make his demand in good faith and with reasonable certainty, as to the amount in dispute, and with no purpose to evade or give the jurisdiction improperly.

If it manifestly appears to the court that the sum demanded is greater than was really due, and was so alleged for the purpose of giving the court jurisdiction, -when in truth and law it could not attach, then, in the language of the late Chief-Justice PearsON, in Froelich v. Express Co., 67 N. C., 1, “it is the duty of the court, ‘ ex mero motu, ’ to interfere and prevent an evasion of the constitution.”

In this case, the court below does not specify the particular ground'upon which the judgment dismissing the action for want of jurisdiction was founded, but we must presume, in view of the facts -appearing in the record, that it rested upon the ground that there was obviously a purpose to give the court jurisdiction, when the facts and the law arising upon them would not allow the same.

It seems to us that there were facts that warranted the action of the court. The plaintiff sued for §312, for feeding and lodging the defendant’s servant, at regular intervals, for a period embracing several years. Pending that time, the defendant from time to time paid on account of such running indebtedness sun *142 dry sums of money, thus discharging the sámelo tanto, until, at the time the action was brought, he owed her only the sum of $58.75. This appears from the plaintiff’s own showing.

Pier daughter, under her direction, kept the account, and she knew or could have known what sum was due her. It was not fair or proper to allege that so large a sum was due, when in fact, within her knowledge, so small a one was due.

We think the court was warranted in giving the judgment-appealed from. There is no error and the judgment must be affirmed.

No error. Affirmed.

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Bluebook (online)

90 N.C. 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiseman-v-witherow-nc-1884.

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