Burrell v. . Hughes
Cases that cite this one
14 later published cases cite this decision.
- Carter v. . R. R. (N.C. 1900)
- State ex rel. Carter v. Wilmington & Weldon Railroad (N.C. 1900)
- Morgan v. High Penn Oil Co. (N.C. 1952)
- Hopkins v. . Barnhardt (N.C. 1943)
- Griffin v. Bank of Coleridge (N.C. 1933)
- Miami Copper Co. v. State (Ariz. 1915)
- Mountain Park Institute, Inc. v. Lovill (N.C. 1930)
- Williams v. Bailey (N.C. 1919)
- Chambers v. . R. R. (N.C. 1916)
- Chambers v. Seaboard Air Line Railway Co. (N.C. 1916)
- Shelby v. . R. R. (N.C. 1908)
- Shelby v. Charlotte Electric Railway, Light & Power Co. (N.C. 1908)
- Sloan v. Carolina Central Railroad (N.C. 1900)
- State Ex Rel. Tillery v. Candler (N.C. 1896)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
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 *437 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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.