Opinion
(February Term, 1895).
Action for Penalty — Party Plaintiff — Jurisdiction — Practice — Demurrer — Appeal.
1. A motion to dismiss an action for want of jurisdiction or because the complaint does not state a cause of action is not such a demurrer ore tenus as will permit an appeal from its refusal.
2. A discrepancy between a summons and a complaint, in respect to the title of the action, is not a material defect, and an amendment is permissible.
3. The person suing for a penalty is the proper party plaintiff and not the State, unless the statute so directs.
4. A party suing for several penalties against the same defendant may unite several such causes of action in the same complaint, and if they exceed $200 in the aggregate the Superior Court will have jurisdiction.
(431) ACTION 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, sec. 1112), heard before Hoke, J., upon demurrer to complaint, at October Term, 1894, of ORANGE.
It was adjudged that the demurrer be sustained and the action (436) dismissed, and the plaintiff appealed.
C. D. Turner for plaintiff.
J. W. Graham and P. C. Graham for defendant.
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 demurrer ore tenus as will permit an appeal from its refusal. Joyner v. Roberts, 112 N.C. 111. (437)
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. R. R., 95 N.C. 67; Sutton v. Phillips, post, 502. 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. Our conclusion is that his Honor, in sustaining the demurrer, committed error.
Reversed.
Cited: Sutton v. Phillips, 117 N.C. 231; Tillery v. Candler, 118 N.C. 889; Goodwin v. Fertilizer Co., 119 N.C. 122; Sloan v. R. R., 126 N.C. 490; Carter v. R. R., ib., 444; S. v. Maultsby, 139 N.C. 585; Shelby v. R. R., 147 N.C. 539; Chambers v. R. R., 172 N.C. 558; Williams v. Bailey, 177 N.C. 40.