Page images
PDF
EPUB

TABLE OF SECTIONS, &c.-CONTINUED.

[blocks in formation]

TABLE

Of Sections of Chapter 17 Battle's Revisal, (other than the Sections of the original Code of Civil Procedure) as cited in Chapter 10 of The Code.

[blocks in formation]

THE CODE OF CIVIL PROCEDURE.

ACTS 1868.

(Now amended into Chapter 10 of the Code of 1883.)

WHEREAS, it is ordained by Section 1, Article IV, of the Constitution of North Carolina, that:

"The distinction between actions at law and suits in equity and the forms of all such actions and suits shall be abolished, and there shall be in this state but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action; and every action prosecuted by the people of the state as a party, against a person charged with a public offence, shall be termed a criminal action. Feigned issues shall also be abolished, and the fact at issue tried by order of court before a jury."

The General Assembly of the State of North Carolina, for the purpose of carrying into effect the said section, and regulating the practice and procedure in civil actions, in the several courts of this state, do enact as follows:

Effect. The remedy for the enforcement of all kinds of contracts is now a civil action. Mitchell v. Henderson, 63-643.

Both legal and equitable remedies being now administered in one action, in an action for specific performance to which the defendant pleads the statute of frauds, the plaintiff may obtain judgment for the purchase-money paid. Pendleton v. Dalton, 92-185.

Under the Code there is but one form of action and the court will give any remedy which the facts set up in the complaint will justify. Lumber Co. v. Wallace, 93-22. See notes to ? 233 (3) post.

The principles of law and equity are distinct though now embraced in one action. Ely v. Early, 94—I.

An act which changes the remedy of the creditor is not unconstitutional, if it gives him another equally efficacious. Williams v. Weaver, 94-134

Administer both legal and equitable rights.-Where, in obedience to directions in the will, the executors enter into a contract under seal, they

are personally liable on the contract, but payment may also be coerced out of the assets of the estate. In such case under our former practice, the plaintiff would have had to sue the executors on their individual liability in an action at law, and to enforce the liability of the estate, he would have to go into a court of equity, but since the adoption of the Code system, both reliefs may be administered in one action. Edwards v. Love, 94-365.

Since the adoption of the Constitution of 1868, the superior courts administer both legal and equitable rights, and when necessary, both are administered in the same action. Vegelahn v. Smith, 95-254.

The procedure under the Code has not changed the legal or equitable rights of litigants, but only allows them, as they existed under the old system, to be administered in one action. Allen v. Taylor, 96-37.

Under the present method of procedure, parties may allege their cause of action, and their rights in and about the same, whether legal or equitable, in the same action. Bean v. Railroad, 107-731.

Jurisdiction of the superior court.-Although the office of "probate judge" is abolished, the powers and jurisdiction of that officer are now exercised by the clerks of the superior court, not as the servant or ministerial officer of or acting as and for the superior court, but as an independent tribunal of original jurisdiction. Edwards v. Cobb, 95—4. The clerks of superior courts have jurisdiction of proceedings for the removal of executors and administrators. Whether the superior courts have such original jurisdiction, quære. Edwards v. Cobb, 95—4.

The superior courts have succeeded to all the jurisdiction of the late courts of equity in respect to infants, and they have authority to direct sales of their property, both real and personal, in proper cases. v. Mott, 96-19.

Tate

Where an action was brought by a widow, alleging that the legal title to certain land was in the defendants, but that they held it in trust for her deceased husband, and asking that they be declared trustees and that her dower be assigned in the land, the superior court in term, and not the clerk, had jurisdiction. Efland v. Efland, 96-488.

Where money was collected by one of two joint owners of several. notes, the other owner cannot bring separate actions for his half of each note collected so as to give a justice of the peace jurisdiction; the action being for money had and received, must be for the aggregate amount so collected and due him. An action might have been maintained for the half of each note as it was collected, but when all were paid the plaintiff became entitled to half of the "gross sum" paid, and, as that exceeded two hundred dollars, a justice of the peace had no jurisdiction. Kearns v. Heitman, 104-332.

Where the damages alleged amount to more than fifty dollars, the superior court has jurisdiction. Bowers v. R. R., 107-721.

The remedy for debt against a married woman, by which it is sought to charge her separate personal property, cannot be had in the court of a justice of the peace. Patterson v. Gooch, 10S-503; Doroughty v. Sprinkle, SS-300.

Date when the C. C. P. went into operation.-The Code of Civil Procedure is one act, and no part of it went into operation before the 24th day of August, A. D. 1868, but it went into effect as a whole on that day. Ragland v. Currin, 64-355.

Although the Constitution of 1868 went into effect in April of that year, still the courts which existed under the old system did not cease to do so, or to entertain actions until the adoption of the Code of Civil Procedure. Lash v. Thomas, 86-313.

« PreviousContinue »