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assembly held after such vancancy is created. The persons elected at such election shall be commissioned by the governor immediately after the ascertainment of the result in the manner provided by law and shall qualify and enter upon the discharge of the duties of the office within ten days after receiving such commission.

1899, c. 613. Cases of interest hereunder rendered prior to this enactment: Cloud v. Wilson, 72-155; Hargrove v. Hilliard, 72-169.

1499. Power to discharge drunken solicitor. When any state solicitor, authorized by election or appointment to act as prosecuting attorney for, or in behalf of the state of North Carolina, in any of the courts of said state, shall appear at such court, in term time, drunk or intoxicated, or when it shall be brought to the knowledge of the judge presiding at such court that the solicitor, whose duty it is to represent the state at such court, is in the town in which such court is being held, drunk or intoxicated, at any time, it shall become the duty of such judge, and he is hereby directed to immediately discharge such solicitor from the duties of such court, for the term then being held, and appoint some competent attorney to act as state solicitor for the term of said court. Said appointee shall be allowed all the fees and compensations belonging to the solicitor for such

term.

1901, c. 717.

II. JURISDICTION.

1500. Original. The superior court shall have original jurisdiction of all civil actions whereof exclusive original jurisdiction is not given to some other court; and of all criminal actions in which the punishment may exceed a fine of fifty dollars, or imprisonment for thirty days; and of all such affrays as shall be committed within one mile of the place where, and during the time, such court is being held; and of all offenses whereof exclusive original jurisdiction is given to justices of the peace, if some justice of the peace shall not within twelve months after the commission of the offense proceed to take official cognizance thereof.

Code, s. 922; 1889, c. 504, s. 2; Const., Art. IV, ss. 12, 27; 1879, c. 92, s. 11; 1881, c. 210.

GENERAL OBSERVATIONS. As to meaning of term "superior court" in interpreting legislation establishing inferior courts, see Rhyne v. Lipscombe, 122-650. Legislature has power to establish, limit and define jurisdiction of superior courts: Bynum v. Powe, 97-374-and to prescribe extent, manner, time and place of exercising their jurisdiction, Ibid—but it can not deprive them of any constitutional or inherent powers essential to their existence, Ex Parte McCown, 139-95; Mott v. Comrs., 126-866; Scott v. Fishblate, 117-275 and cases cited-nor can it abolish them in

whole or in part, Pate v. R. R., 122-877; Ryhne v. Lipscombe, 122-650. While jurisdiction of superior court may be made largely appellate by conferring such part of its original jurisdiction on such inferior courts as legislature may provide, yet its jurisdiction must be retained by original or appellate process: Rhyne v. Lipscombe, 122-650. The legislature can confer upon courts established by it inferior to supreme court exclusive original jurisdiction, or jurisdiction concurrent with superior court, of matters heretofore cognizable in superior court (except appellate jurisdiction over justices of the peace): Pate v. R. R., 122-877; Tate v. Comrs., 122-661-yet it can not change status of superior court as head of superior court system, Pate v. R. R., 122-877-nor can it emasculate the superior courts by transferring concurrent jurisdiction of cases, which have originated and are pending in them, down to circuit or other inferior court, Tate v. Comrs., 122-661.

Constitutional jurisdiction of superior courts, generally, may be stated as intermediate between supreme court and courts of justices of the peace: Mott v. Comrs., 126-866. Code of Civil Procedure does not take away from superior courts jurisdiction heretofore exercised by courts of equity: Barcello v. Hapgood, 118-712; Wilson v. Bynum, 92-717. Courts of state have jurisdiction only of criminal offenses committed within its territorial boundaries: State v. Mitchell, 83-674-though if committed in another state, that is matter of defense under plea of not guilty, Ibid. Court must have jurisdiction of subject before can adjudge anything, and therefore has no jurisdiction over lands in another state: Davenport v. Gannon, 123362.

Consent of parties can not give jurisdiction generally where same does not attach under constitution and laws: Cary v. Allegood, 121-54; State v. Miller, 100-543; Planing Mills v. McNinch, 99-517; Hawkins v. Hughes, 87-115; Leach v. R. R., 65-486; Branch v. Houston, 44-87-yet when complaint does not show jurisdiction as to parties and subject matter, parties can consent to amendment whereby such jurisdiction appears, Planing Mills v. McNinch, 99-517-and it seems that court has power to allow such amendment without consent of defendants, Ibid.

Superior court has exclusive original jurisdiction in all cases when same not given to some other court: State v. Waldrop, 63-508; Wilmington v. Davis, 63-582.

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It is the amount demanded in good faith, along with the other facts which reasonably tend to support it, that fixes the jurisdiction: Thompv. Express Co., 144-389; Watson v. Farmer, 141-452; Shankle v. Ingram, 133-254; Boyd v. Lumber Co., 132-184; Sloan v. R. R., 126-487; Cromer v. Marsha, 122-563; Martin v. Goode, 111-288; Brantley v. Finch, 97-91; Moore v. Nowell, 94-265; Morris v. O'Briant, 94-72; Wiseman v. Witherow, 90-140. As to what is the real amount demanded that determines jurisdiction, see Brantley v. Finch, 97-91; Coggins v. Harrell, 86-317; Morris v. Saunders, 85-140; Brickell v. Bell, 84-85; Dalton v. Webster, 82-283; Bryan v. Rousseau, 71-194; Froelich v. Express Co., 67-3; Fell v. Porter, 69-142; Hedgecock v. Davis, 64-651.

Where total want of jurisdiction apparent upon face of proceedings, court will of its own motion stay, quash or dismiss suit: Short v. Gill,

126-803; State v. Miller, 100-543; Hannah v. R. R., 87-351; McMinn v. Hamilton, 77-300; Israel v. Ivey, 61-551; Branch v. Houston, 44-85-but where such not the case, objection must in apt time be brought forward by plea to jurisdiction, otherwise there is no implied waiver of objection, Short v. Gill, 126-803; McMinn v. Hamilton, 77-300; Branch v. Houston, 44-88.

Where complaint in action of which court would have no jurisdiction, if same on contract, states facts upon which action, either in tort or contract, could be based, courts will so treat action as to sustain jurisdiction: White v. Eley, 145-36; Parker v. Express Co., 132-130; Sams v. Price, 119-572; Brittain v. Payne, 118-989; Schulhofer v. R. R., 118-1096; Bowers v. R. R., 107-721; Stokes v. Taylor, 104-394. Though judgments are not treated as contracts for all purposes, they are so treated for purpose of distinguishing therefrom causes of action ex delicto: Moore v. Nowell, 94-265. The legal existence of a court can not be drawn in question by a plea to the jurisdiction, for such a plea presupposes that the court was regularly called and organized, as jurisdiction means the right to hear and determine causes between litigants, which nothing but a court can do: State v. Hall, 142-710.

JURISDICTION, CIVIL ACTIONS ARISING EX CONTRACTU. Where sum demanded in good faith in action on contract exceeds $200 the superior court has jurisdiction: Carter v. R. R., 126-437; Horner School v. Wescott, 124-519; Burrell v. Hughes, 116-431; Martin v. Goode, 111-288; McPhail v. Johnson, 109-571; Maggett v. Roberts, 108-174; Kearns v. Heitman, 104-332; Moore v. Nowell, 94-265; Usry v. Suit, 91-406; Coggins v. Harrell, 86-317; Morris v. Saunders, 85-138; Brickell v. Bell, 84-82; Dalton v. Webster, 82-279; Walton v. Walton, 80-26; Bryan v. Rousseau, 71-194; Fell v. Porter, 69-140. Though there may be several causes of action, each of which is for less than $200, if aggregate demand is for more than $200, superior court has jurisdiction, whenever causes of action are such as can be joined in one action: Boyd v. R. R., 132-184; Sloan v. R. R., 126-487; Carter v. R. R., 126-437; Burrell v. Hughes, 116-430; Martin v. Goode, 111-289; Maggett v. Roberts, 108-174; Moore v. Nowell, 94-265-but should demand be reduced under $200 by failure of proof or by sustaining a demurrer to any part thereof or to some of the causes of action, jurisdiction would not thereby be ousted, Brown v. Southerland, 142-227; Boyd v R. R., 132-187; Shankle v. Ingram, 133-259; Martin v. Goode, 111-289; Usry v. Suit, 91-406; Brickell v. Bell, 84-82-except when sum demanded is so palpably in bad faith as to amount to a fraud on jurisdiction: Martin v. Goode, 111-289; Wiseman v. Witherow, 90-140-or where there is misjoinder of parties, Martin v. Goode, 111-289; Mitchell v. Mitchell, 96-14.

The superior court having jurisdiction in actions whereof justices have not exclusive original jurisdiction, it has jurisdiction of actions on contract for $200 and less where title to land in controversy: Brown v. Southerland, 142-225; Smith v. Garris, 131-36; Alexander v. Gibbon, 118-805; Wright v. Harris, 116-460; Boone v. Drake, 109-83; Edwards v. Cowper, 99-421; Forsythe v. Bullock, 74-135; Credle v. Gibbs, 65-192-and the controversy referred to must be between the parties, Davis v. Davis, 83-71; Evans v. Williamson, 79-86. Mere allegation of defendant in action on

contract for $200 or less that title is in controversy will not give jurisdiction to superior court: Brown v. Southerland, 142-225; Pasterfield v. Sawyer, 132-258; McDonald v. Ingram, 124-272; Alexander v. Gibbon, 118-805; Paine v. Cureton, 114-608; Hahn v. Guilford, 87-172. Defendant, by moving to dismiss on pleadings, can not oust jurisdiction of superior court, provided complaint sets forth facts which present case in which title to real estate is in controversy: Brown v. Southerland, 142-225.

Party suing for several penalties against same defendant may unite several such causes of action in same complaint and, if aggregate exceeds $200, superior court will have jurisdiction: Burrell v. Hughes, 116-430; Maggett v. Roberts, 108-174.

In action for forcible entry and detainer superior court and not justice has jurisdiction: Perry v. Shepherd, 78-83; State v. Yarborough, 70-250; Railroad v. Sharpe, 70-509. Superior court and not justice has jurisdiction of action of vendor against vendee for possession: Johnson v. Hauser, 82-375-and where vendor brought summary ejectment against vendee, claiming that vendee had abandoned his rights and sustained the relation of tenant, justice had no jurisdiction if evidence of abandonment insufficient, Boone v. Drake, 109-79.

Superior court has jurisdiction of action upon several judgments rendered by justice of peace, each for less sum than $200, but aggregating more than that sum: Moore v. Nowell, 94-265. Where items of account are incurred under different contracts but plaintiff renders a statement to defendant for entire amount due and defendant accepts it or does not dissent, plaintiff is bound by it as a new contract to pay the amount stated, and if it is for over $200 superior court has jurisdiction and plaintiff can not split it up: Copland v. Tel. Co., 136-11; Simpson v. Elwood, 114-528— but if defendant objects to the consolidated account he is not bound as to jurisdiction, Copland v. Tel. Co., 136-11. Upon a contract to purchase entire output of mill, plaintiff can sue as each delivery is made, but, if he waits till output delivered, he can not split up account and superior court has jurisdiction: McPhail v. Johnson, 109-571. An account for a bill of goods purchased on one day is taken as one entire transaction, unless otherwise appears: Magruder v. Randolph, 77-79.

Where dealings were continuous and nothing appears indicating that either party intended that each item should constitute separate transaction, it can not be split: Ibid. Where, on appeal of several actions brought on split-up accounts, all due under single contract cognizable in superior court, the actions were consolidated, held that superior court did not thereby gain jurisdiction, its appellate jurisdiction being derived solely from the rightful one assumed by court below: Jarrett v. Self, 90-478. Superior court has no jurisdiction of action ex contractu where sum sought to be recovered is $200 or less: Howard v. Ins. Co., 125-49; Gillam v. Ins. Co., 121-369; Powell v. Allen, 103-46; Burbank v. Comrs., 92-257; Hannah v. R. R., 87-351; McDonald v. Cannon, 82-245; Foster v. Penny, 76-131; Pullen v. Green, 75-217; Latham v. Rollins, 72-454; Templeton v. Summers, 71-269; Froelich v. Express Co., 67-1; Winslow v. Weith, 66-432no jurisdiction where account sued on was for $312 and payments thereon reduced it to less than $200, Wiseman v. Witherow, 90-140.

In action on penal bond, where penalty of bond does not exceed $200, a justice of the peace and not the superior court has jurisdiction, same being an action ex contractu: Railroad v. Hardware Co., 135-73; Darden v. Blount, 126-251; Joyner v. Roberts, 112-114; Coggins v. Harrell, 86-317; Bryan v. Rousseau, 71-194; Fell v. Porter, 69-140-likewise in action for the recovery of a penalty given by statute not over $200, Carter v. R. R., 126437; Henderson v. Davis, 106-88; Doughty v. R. R., 78-22; Maggett v. Roberts, 108-174; Katzenstein v. R. R., 84-688-and in action on penal bond greater than $200, plaintiff can not make remittance to bring it down to justice's jurisdiction, Coggins v. Harrell, 86-317; Morris v. Saunders, 85-140. Where several counterclaims pleaded, the aggregate sum will be taken as jurisdictional amount: Electric Co. v. Williams, 123-51.

Superior court has no jurisdiction in actions where tort waived and sum received for property wrongly sold sought to be recovered, if amount demanded does not exceed $200: Winslow v. Weith, 66-432. Superior court has no jurisdiction of action upon note for $275 on which balance was less than $200: Harvey v. Johnson, 133-352. Judgment by confession without action, founded on contract in superior court for sum not in excess of 200, is void for want of jurisdiction: Slocumb v. Shingle Co., 110-24.

JURISDICTION, CIVIL ACTIONS ARISING EX DELICTO. In all actions ex delicto, where the value of the property in controversy does not exceed $50, the superior court and the court of a justice of the peace have concurrent jurisdiction: Duckworth v. Mull, 143-461; Watson v. Farmer, 141-452; Thomas v. Cooksey, 130-148; Kiser v. Blanton, 123-400; Malloy v. Fayetteville, 122-480; Johnson v. Williams, 115-33; Crinkley v. Egerton, 113-142; Harvey v. Hambright, 98-446; Montague v. Mial, 89137; Noville v. Dew, 94-43; Ashe v. Gray, 90-137-but where value exceeds $50 superior court has exclusive original jurisdiction: McDonald v. Cannon, 82-247; Crinkley v. Egerton, 113-142; Spencer v. Bell, 109-39; Bowers v. Railroad, 107-722; Asher v. Reizenstein, 105-213; Long v. Fields, 104-221; Edwards v. Cowper, 99-421; Noville v. Dew, 94-43; Barneycastle v. Walker, 92-198; Womble v. Leach, 83-84.

The jurisdiction is determined by the damages claimed or the value of the property involved, being the amount demanded in good faith: Thompson v. Express Co., 144-389; Watson v. Farmer, 141-452; Noville v. Dew, 94-45; see also Knight v. Taylor, 131-84; Sloan v. R. R., 126-487, and cases cited on page 490; Cromer v. Marsha, 122-563; Martin v. Goode, 111-288; Brantley v. Finch, 97-91; Morris v. O'Briant, 94-72; Moore v. Nowell, 94-265; Wiseman v. Witherow, 90-140.

The words "property in controversy" mean the value of the injury complained of and involved in the litigation: Duckworth v. Mull, 143-461; Malloy v. Fayetteville, 122-480; but see Noville v. Dew, 94-43; Pippin v. Ellison, 34-61; Smith v. Campbell, 10-590.

Mere demand of judgment for amount of damages greater than alleged in complaint will not give superior court jurisdiction: Bowers v. R. R, 107-721.

Where action, brought for tort in justice's court, goes up to superior court on appeal, the jurisdiction being concurrent, that court will take

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