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116 N.C. 430

21 S.E 971

Burrell v. . Hughes

Supreme Court of North Carolina

Decided February 5, 1895

Supreme Court of North Carolina · decided 1895-02-05

AotioN to recover a penalty of one hundred dollars alleged to be due by reason of the failure of defendant Sheriff to execute process in a criminal action — assigning four separate and distinct forfeitures by and because of said alleged failure (Code, See. 1112),heard before HoTte, Judge, upon demurrer to complaint, at October Term, 1894, of OeaNGB Superior Court.

Key passage — most relied on by later courts

“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.”

quoted by 1 later decision, including Carter v. . R. R.

“The person suing for a penalty is the proper party plaintiff, and not the State, unless so expressed in the statute,”

quoted by 1 later decision, including Carter v. . R. R.

Good law ✅— No negative treatment on recordhow we know

Decided 1895-02-05

How this case has been cited

Cited by 5 later decisions — most recently December 1952

5 state decisions

201895190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Eaircloth, C. J.:

¶1 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.

¶2 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.

¶3 A motion to dismiss for want of jurisdiction or because the complaint does not state a cause of action is not such a *437 demurrer ore tenus as will permit an appeal from its refusal. Joyner v. Roberts, 112 N. C., 111.

¶4 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.

¶5 Reversed.

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