{ "id": 8656985, "name": "LOWER CREEK DRAINAGE COMMISSIONERS v. J. W. SPARKS et al.", "name_abbreviation": "Lower Creek Drainage Commissioners v. Sparks", "decision_date": "1920-05-19", "docket_number": "", "first_page": "581", "last_page": "587", "citations": [ { "type": "official", "cite": "179 N.C. 581" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "172 N. C., 102", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "110 N. C., 32", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272568 ], "opinion_index": 0, "case_paths": [ "/nc/110/0032-01" ] }, { "cite": "124 N. C., 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660588 ], "opinion_index": 0, "case_paths": [ "/nc/124/0610-01" ] }, { "cite": "95 N. C., 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273059 ], "opinion_index": 0, "case_paths": [ "/nc/95/0085-01" ] }, { "cite": "178 N. C., 141", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "167 N. C., 353", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "155 N. C., 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651922 ], "opinion_index": 0, "case_paths": [ "/nc/155/0173-01" ] }, { "cite": "92 N. C., 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273790 ], "opinion_index": 0, "case_paths": [ "/nc/92/0362-01" ] }, { "cite": "155 N. C., 396", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "131 N. C., 795", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8663009 ], "opinion_index": 0, "case_paths": [ "/nc/131/0795-01" ] }, { "cite": "105 N. C., 49", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652207 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/105/0049-01" ] }, { "cite": "92 N. C., 365", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "85 N. C., 365", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "122 N. C., 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660187 ], "opinion_index": 1, "case_paths": [ "/nc/122/0480-01" ] }, { "cite": "147 N. C., 258", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "140 N C., 95", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "133 N. C., 358", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "130 N. C., 532", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "124 N. C., 611", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "106 N. C., 300", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "95 N. C., 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273078 ], "opinion_index": 1, "case_paths": [ "/nc/95/0087-01" ] }, { "cite": "95 N. C., 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273059 ], "weight": 5, "opinion_index": 1, "case_paths": [ "/nc/95/0085-01" ] } ], "analysis": { "cardinality": 626, "char_count": 16872, "ocr_confidence": 0.482, "pagerank": { "raw": 3.183363971721205e-07, "percentile": 0.8646716468797988 }, "sha256": "aec6e31436b74bb32b257281544e674a086f892a5224d02a4e95ed1e2e71ade0", "simhash": "1:df2bd2b8195c5ffe", "word_count": 2957 }, "last_updated": "2023-07-14T16:12:15.491038+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LOWER CREEK DRAINAGE COMMISSIONERS v. J. W. SPARKS et al." ], "opinions": [ { "text": "Allen, J.\nThe jurisdiction of the Superior Court on appeal from a justice of the peace is derivative, not original, and if the justice has no jurisdiction of the action the Superior Court has none.\nThis has been decided many times in our Court.\nIn Boyette v. Vaughan, 85 N. C., 365, the Court said, in a unanimous opinion: \u201cIt is the jurisdiction of the justice of the peace wbicb, on appeal, gives jurisdiction to the Superior Court, and of course if the justice bad no jurisdiction, the Superior Court could bave none\u201d; and again, in Ijames v. McClamroch, 92 N. C., 365: \u201cTbe jurisdiction of the Superior Court in appeals from justice\u2019s courts, is entirely derivative. If the justice in sucb cases bas no jurisdiction of the action, the Superior Court can derive none by the appeal.\u201d\nEotb of these cases were cited and approved in Robeson v. Hodges, 105 N. C., 49, in an opinion written by Chief Justice Ciarle, in wbicb be quotes from the first that \u201cIt is the jurisdiction of the justice of the peace wbicb, on appeal, gives jurisdiction to the Superior Court, and, of course, if the justice bad no jurisdiction the Superior Court could bave none, and, therefore, by allowing an amendment in the transcript, wbicb enlarges the cause of action beyond the jurisdiction of the justice it must necessarily oust itself of jurisdiction\u201d; and the same learned judge concurred in the opinion written by Chief Justice Furches in S. v. Wiseman, 131 N. C., 795, in wbicb it was said: \u201cIn cases where bills are found in the Superior Court, its jurisdiction is original. But in cases of appeal from justices of the peace its jurisdiction is derivative, and it bas no more or greater jurisdiction than the justice of the peace bad; and if the justice bad none, the Superior Court bad none.\u201d\nHoke, J., says, in Cheese Co. v. Pipkin, 155 N. C., 396: \u201cThe cause having originated in the court of a justice of the peace, questions of jurisdiction must be considered and determined in reference to that fact, and numerous and repeated cases with us are to the effect \u2018That the jurisdiction of the Superior Court on appeals from a justice of the peace is entirely derivative, and if the justice bad no jurisdiction, in an action as it was before him, the Superior Court can derive none by amendment.\u2019 Ijames v. McClamrock, 92 N. C., 362. A principle fully approved by the present Chief Justice, delivering the opinion of the Court in Robeson v. Hodges, 105 N. C., 49, and reaffirmed and applied at the present term in Wilson v. Ins. Co., 155 N. C., 173.\nAll of these authorities are cited and approved in McLaurin v. McIntyre, 167 N. C., 353.\nTbe question, therefore, presented by the appeal is, Did the justice have jurisdiction of the action?\nThe Constitution of the State (Art. IY, sec. 27) limits the jurisdiction of justices in civil matters to \u201ccivil actions founded on contract wherein the sum demanded shall not exceed two hundred dollars,\u201d and authorizes the General Assembly to confer jurisdiction in \u201cother civil actions wherein the value of the property in controversy does not exceed fifty dollars,\u201d and as there is neither allegation nor proof of any contract between the plaintiff and defendants as the foundation of the action, and there is no property in controversy, but simply the question of liability for an assessment, the justice had no jurisdiction.\nAssessments are sustained upon the ground of benefit to the property, which is the debtor, and not the owner of the property.\n\u201cThe lien of the charges for drainage is not a debt of the owner of the land therein, but is a charge solely upon the land, and accrues pari passu with the benefits as they shall accrue thereafter. They are not liens until they successively fall due, and are presumed to be paid out of the increased productiveness and other benefits as they accrue from time to time. These assessments are to be levied from time to time to pay, not the indebtedness of the owner of any tract, but to pay the bonded indebtedness of the district.\u201d Pate v. Banks, 178 N. C., 141.\nThis ease also notes the distinction between assessments and laborer\u2019s and mechanic\u2019s 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, \u201cThese \u2018public charges\u2019 are entirely different from a mortg\u00e1ge 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\u2019s or mechanic\u2019s lien, which is for benefit already received, and which is primarily a personal debt of the employer.\u201d\nIt says further, \u201c \u2018Pavement\u2019 assessments, as is said in Raleigh v. Peace, 110 N. C., 32, are like these assessments for drainage purposes, being \u2018founded 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,\u2019 and \u2018do not authorize a personal judgment against the owner of the property,\u2019 \u201d thereby approving the decision in Raleigh v. Peace that a statute providing for a personal judgment \u201cis invalid,\u201d and under the same principle the General Assembly cannot confer jurisdiction on justices denied by the Constitution.\nNo stronger proof can be produced to show that the plaintiff\u2019s cause of action is not \u201cfounded on contract\u201d than the statement of our Court that no personal judgment can be recovered, because we recognize fully, as a part of tbe obligation of contracts, tbe right to enforce payment by judgment and executions.\nTbe question is, however, settled against tbe plaintiff in Canal Co. v. Whitley, 172 N. C., 102, which was an action commenced before a justice of tbe peace to recover an assessment of $45, levied under tbe drainage laws, in which tbe Court says, by unanimous opinion, \u201cWe are of opinion, however, that this action will not lie, and that tbe justice of tbe peace has no jurisdiction to entertain it. It is not a debt, and does not arise ex contractu.\"\nWe are therefore of opinion there is no error.\nAffirmed.", "type": "majority", "author": "Allen, J." }, { "text": "Clark, C. J.,\ndissenting: Tbe statute under which this proceeding was instituted is very plain. It provides that the \u201ccollector shall be empowered to bring an action in the name of the corporation to enforce said lien by subjecting the land intended to be benefited by rendering it more productive either in the Superior Court or before a justice of the peace, and the court having jurisdiction of the amount due shall have power, upon summons served upon any of said landowners as prescribed in cases where actions are brought to enforce money demands where said landowners shall fail to pay such assessment, on or before the first of December of the year in which such assessment shall have been levied; and the court on trial shall have power to adjudge that such assessment shall constitute a lien on the land assessed, and that the sheriff of the county shall sell the said land assessed to satisfy such assessment upon it, and the cost of the action so brought to enforce it.\u201d\nThis statute authorizes the Court to declare the assessment a lien, for the amount, and if the amount is under $200 the jurisdiction is in the court of the justice of the peace, and if over that amount it is in the Superior Court, and upon the declaration of the lien the sheriff proceeds to sell to collect said sum.\nThis is precisely the case of Smaw v. Cohen, 95 N. C., 87, where the Court held that an action to enforce a lien for materials and work and labor done, which is for less than $200, is in the jurisdiction of a justice of the peace, Smith, C. J., saying: \u201cThe present action, though instituted as well to enforce the lien as to establish the debt to which it attaches, is, by the law, required to be prosecuted in the court having jurisdiction, according to the amount claimed under the contract and in no other. The statute must control and modify the general rule, as laid down in those eases, and as it denies jurisdiction in the Superior Court for the sum demanded we cannot assume and undertake to exercise it.\u201d In Smaw v. Cohen the action was to enforce a lien against the land of a feme covert wbo at tbat time could not be liable on a contract, but the proceedings to declare the amount of the lien was held to be before the justice of the peace and the sheriff proceeded to collect. That case is exactly on all fours with this.\nIn Farthing v. Shields, 106 N. C., 300, Shepherd, J., said: \"Smaw v. Cohen, 95 N. C., 85, may be sustained, as to the liability of the separate estate, on the ground that the statute, Code, ch. 41 (liens) directly charges it,\u201d which is exactly the case here. This is not an action to collect a debt, but to adjudge the amount of the lien, which is within the jurisdiction of the justice, and then the sheriff proceeds to collect.\nIn Weathers v. Borders, 124 N. C., 611, Furches, J., says: \"Smaw v. Cohen is authority for holding that where the debt sued for is less than $200, the action should be brought before a justice of the peace; and that where the debt is established by the judgment, the statute creates a lien. Rut where the debt is less than $200, and it is sought to establish an equitable lien, the action must be brought in the Superior Court as a justice of the peace has no equitable jurisdiction.\u201d .\nIn Finger v. Hunter, 130 N. C., 532, the Court said: \u201cThe proceeding being for a lien under $200 was properly brought in the justice\u2019s court. Smaw v. Cohen, 95 N. C., 85.\u201d\nIn Harvey v. Johnson, 133 N. C., 358, Walker, J., says: \u201cThe act of 1901 is an amendment to sec. 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 the person to enforce such lien, when the amount is less than $200, shall be brought in a justice\u2019s court.\u201d\nIn Ball v. Paquin, 140 N C., 95, Connor, J., says: \u201cIn Smaw v. Cohen, 95 N. C., 85, it is 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.\u201d In all these cases, as in the present, there was no personal judgment against the defendant, for at that time the Martin Act had not been passed, and it was held that a personal judgment could not be obtained against a married woman.\nIn Rutherford v. Ray, 147 N. C., 258, it is said by Connor, J.: \u201cIn 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. It will be observed that the statute uses the words 'according to the jurisdiction thereof.\u2019 \u201d\nAll these cases are exactly in point, for in them no personal judgment could be rendered against the defendant, a- married woman, but the Court sustained the jurisdiction because the amount for which the lien was adjudged was less than $200, and the lien was not equitable, but statutory, and the sheriff proceeded to collect. In those cases, as in this, it was not sought to decree an equitable lien, but the lien was created by the statute, as a result of the final decree establishing the drainage district, and the justice merely adjudged the amount due under the lien.\nThis renders it unnecessary to consider the other reasons assigned in the opinion of the Court, for if, as these eases hold, the magistrate has jurisdiction the appeal ought not to have been dismissed. TJnder our practice, the Court does not favor dismissing an action for want of jurisdiction if the Court can sustain it, nor requiring the heavier cost, and the delay, involved by proceeding in the Superior Court when the justice of the peace has jurisdiction of the amount.\nCivil causes of action are divided into those on contract and torts. It is this division that is referred to in prescribing the jurisdiction of justices of the peace to \u201ccivil actions founded on contract, wherein the sum demanded shall not exceed $200, and wherein the title to real estate shall not be in controversy,\u201d and \u201cof other civil actions wherein the value of the property in controversy does not exceed $50.\u201d This last was construed in Malloy v. Fayetteville, 122 N. C., 480, to authorize justices to take cognizance of actions for damages not exceeding $50 to property. Justices were not given jurisdiction of torts, but that jurisdiction of contracts was not restricted to the narrower meaning of agreements is shown by the fact that indebtedness for a tax, on a lien and under a judgment, are construed to be contracts, though the debtor cannot be said in either case to have agreed to be liable.", "type": "dissent", "author": "Clark, C. J.," } ], "attorneys": [ "Marie Squires, R. L. Huffman, and S. J. Ervin for plaintiff.", "Spainhour & Mull for defendant." ], "corrections": "", "head_matter": "LOWER CREEK DRAINAGE COMMISSIONERS v. J. W. SPARKS et al.\n(Filed 19 May, 1920.)\n1. Courts \u2014 Jurisdiction\u2014Justices of the Peace \u2014 Appeal\u2014Superior Courts.\nAn appeal to the Superior Court from a justice of the peace confers only derivative jurisdiction on the Superior Court, depending entirely upon that of the justice\u2019s court from which the action was appealed, and in the absence thereof the Superior Court can acquire none.\n2. Drainage Districts \u2014 Statutes \u2014 Liens \u2014 Actions\u2014 Courts\u2014 Personal Judgments \u2014 Proceedings in Rem \u2014 Contracts.\nThe lien upon the land of the owner in a drainage district when the amount of the assessment has been ascertained in accordance with the provisions of eh. 96, Public Laws of 1909, is by section 4 thereof, upon the lands designated, with right of action in the collector to enforce the lien, by subjecting thereto the land to be benefited or rendered more productive, making the land the debtor, and not the owner thereof, and no personal judgment can be obtained against him, the action being exclusively m rem, and not founded on contract.\nS. Constitutional Law \u2014 Courts\u2014Jurisdiction\u2014Actions\u2014Justices of the Peace \u2014 Proceedings in Rem \u2014 Appeal\u2014Superior Court.\nArt. 4, sec. 27, of our State Constitution, by limiting the jurisdiction of justices of the peace to the sum of two hundred dollars in civil actions founded on contract, and in other civil actions to fifty dollars, value of property, deprives the Legislature of the authority to confer on justices\u2019 courts jurisdiction in actions to enforce a lien upon lands for assessment for benefits to the lands in a drainage district, such proceedings being against the land alone as the debtor, and there being no contractual relations between the owner and the drainage district formed under the statute, ch. 96, Public Laws of 1909; and the justice\u2019s court being excluded from exercising jurisdiction of this subject-matter, none can be acquired thereof by the Superior Court on appeal therefrom.\nAppeal by plaintiff from Harding, J., at the December Term, 1919, of Bueke.\nThis is an action commenced before a justice of the peace, and beard in the Superior Court on appeal, to enforce an assessment against the lands of the defendants, levied by the commissioners of Lower Creek Drainage District under ch. 96, Public Laws 1909, which, after providing for the assessment, says, in sec. 4: \u201cThe assessment so levied shall constitute a lien upon the lands so assessed only, which shall be the lands designated by said freeholders in their report as injured or rendered less productive as aforesaid; and the said collector shall be empowered to bring an action in the name of the corporation to enforce said lien by subjecting the land intended to be benefited by rendering it more productive, either in the Superior Court or before a justice of the peace, and the court having jurisdiction of the amount due shall have power, upon summons served upon any of said landowners, as prescribed in cases where actions are brought to enforce money demands where said landowners shall fail to pay such assessment on or before 1 December of the year in which such assessment shall have power to adjudge that such assessment shall constitute a lien on the land assessed, and that the sheriff of the county shall sell the said land assessed to satisfy such assessment upon it, and the cost of the action so brought to enforce it; provided, however, that either the plaintiff or the defendant in such action shall have the right to appeal, as provided by law in other cases, upon giving bond in the sum of a hundred dollars.\u201d\nThe justice rendered judgment in favor of the defendants, and the plaintiff appealed, and in the Superior Court the action was dismissed for want of jurisdiction, and the plaintiff again appealed.\nMarie Squires, R. L. Huffman, and S. J. Ervin for plaintiff.\nSpainhour & Mull for defendant." }, "file_name": "0581-01", "first_page_order": 637, "last_page_order": 643 }