SMAW v. COHEN

9 Citing cases

  1. Comrs. v. Sparks

    103 S.E. 142 (N.C. 1920)   Cited 17 times

    " Pate v. Banks, 178 N.C. 141. This case also notes the distinction between assessments and laborer's and mechanic's liens, which must have a debt on which a personal judgment may be recovered, to rest on, the last being represented by Smaw v. Cohen, 95 N.C. 85; Weathers v. Borders, 124 N.C. 610, in which the plaintiff relies, and holds that, "These `public charges' are entirely different from a mortgage which is to secure an indebtedness of the mortgagor for a benefit such as money borrowed, or other purpose, already received, nor like the laborer's or mechanic's lien, which is for benefit already received, and which is primarily a personal debt of the employer." It says further, "`Pavement' assessments, as is said in Raleigh v. Peace, 110 N.C. 32, are like these assessments for drainage purposes, being `founded upon the principle that the land abutting upon the improvement receives a benefit over and above the property of the citizens generally, and should be charged with the value of such peculiar benefits,' and `do not authorize a personal judgment against the owner of the property,'" thereby approving the decision in Raleigh v. Peace that a statute providing for a personal judgment "is invalid," and under the same principle the General

  2. Rutherford v. Ray

    61 S.E. 57 (N.C. 1908)   Cited 20 times

    It is suggested by the learned counsel for defendants herein that the action to enforce a lien for material furnished for building is a proceeding quasi in rem and that the general statutory provisions regarding jurisdiction of the person do not apply. In Smaw v. Cohen, 95 N.C. 85, it is held that the justice has jurisdiction of an action to enforce a lien against the property of a married woman if the sum demanded is less than $200. This decision is based upon the language of the statute.

  3. Ball v. Paquin

    140 N.C. 83 (N.C. 1905)   Cited 29 times
    In Ball v. Paquin, 140 N.C. 83, Connor, J., after deciding that the land of a married woman, under certain circumstances, may be charged by necessary implication, under a contract for repairs, entered into with the written consent of her husband and to which her privy examination had been taken, in reference to this last requirement, said: "It is evident that the judges were referring to the formalities with which such contracts should be executed.

    The feme covert had not made any contract, either express or implied. In Smaw v. Cohen, 95 N.C. 85, it was held that an action against a married woman to enforce a lien for an amount less than $200 was within the jurisdiction of a justice of the peace. This Court, as we construe the opinion, did not pass upon the validity of the contract.

  4. Harvey v. Johnson

    45 S.E. 644 (N.C. 1903)   Cited 4 times

    The act of 1901 is an amendment to section 1781 of The Code, which subjects the property upon which the repairs or improvements are made to a lien. This brings the case directly within the reason for the decision in Smaw v. Cohen, 95 N.C. 85. In that case the jurisdiction of the justice was sustained by reason of the express requirement of the statute that a suit against a person to enforce such a lien, when the amount is less than $200, shall be brought in a justice's court.

  5. Finger v. Hunter

    41 S.E. 890 (N.C. 1902)   Cited 19 times
    In Finger v. Hunter, 130 N.C. 529, this statute was held constitutional and was enforced, and that case has been approved in Ball v. Paquin, 140 N.C. 96, and other cases.

    When the Court has divided on the subject, it has only been whether the Legislature, in a given case, had restricted the power to contract, or, in view of the constitutional provision, had the authority to restrict it. The proceeding being for a lien under $200, was properly brought in the justice's court. Smaw v. Cohen, 95 N.C. 85. Besides, the statute making a married woman in these circumstances liable for her contract, she is liable to an action before a justice of the peace just as she would be if a free trader, or for an antenuptial debt. Neville v. Pope, 95 N.C. 346. Upon the facts found, judgment should have been entered for the plaintiffs.

  6. Hodges v. Hill

    10 S.E. 916 (N.C. 1890)   Cited 5 times

    Dougherty v. Sprinkle, 88 N.C. 300, which holds that a Justice of the Peace has not jurisdiction of an action against a married woman, applies only to liabilities incurred by her while a feme covert, and not even to them in cases where she is a free trader, or the proceeding is to enforce a laborer's lien. The Code, ยงยง 1790, 1828, 1831 and 1832; Smaw v. Cohen, 95 N.C. 85. Error.

  7. Farthing v. Shields

    10 S.E. 998 (N.C. 1890)   Cited 49 times
    In Farthing v. Shields, 106 N.C. 289, quoted and approved in Wilcox v. Arnold, 116 N.C. 708, this Court said: "It is well settled by the uniform decisions of this Court that, except in cases mentioned in the Code, sections 1828, 1831, 1832, 1836, a feme covert is, at law, incapable of making any executory contract whatever.

    The plaintiff, it is presumed, knew of her inability to charge her general statutory separate real estate in any other way than by a deed and privy examination, and if we were to give the effect contended for to such a transaction, it would, as Judge Ruffin said, be doing, indirectly, what the law forbids to be done directly. In passing, we will state that the case of Smaw v. Cohen, 95 N.C. 85, may be sustained, as to the liability of the separate estate, on the ground that the statute, ch. 41 of The Code (Liens), directly charges it. (301) There is another view, however, which is fatal to the plaintiff.

  8. Berry v. Henderson

    9 S.E. 455 (N.C. 1889)   Cited 5 times

    " The present Chief Justice, in Smaw v. Cohen, 95 N.C. 85, says, in speaking of Dougherty v. Sprinkle, supra: "The decision has reference to contracts generally entered into by married women, and their enforcement against their separate estate. They are held to be obligatory, not upon the contracting feme covert personally, but upon her separate estate, and as the proceeding is in its nature equitable, as in a bill for foreclosure of a mortgage, relief could not be had in a justice's court.

  9. Planning Mills v. McNinch

    6 S.E. 386 (N.C. 1888)   Cited 6 times

    It is expressly decided that the Superior Courts have jurisdiction in such cases. Dougherty v. Sprinkle, 88 N.C. 300; Webster v. Laws, 89 N.C. 224; Smaw v. Cohen, 95 N.C. 85; Neville v. Pope, ibid., 346. But the appellants insist that, inasmuch as the complaint, was (519) at first filed, alleged but a single cause of action, of which the court had not jurisdiction, it could not obtain it by an amendment of the complaint, alleging a cause of action of which it had jurisdiction.