#### LOUIS BAER v. JONAH McCALL and W. J. GODWIN, Surety on Replevin Bond.

(Filed 3 November, 1937.)

1. Courts § 7—

Where plaintiff declares on two causes of action which together exceed the jurisdictional amount of the recorder’s court, he may, upon defendant’s motion to dismiss for want of jurisdiction, withdraw one count, and it is error for the recorder’s court to refuse to allow such withdrawal and dismiss the action for want of jurisdiction.

2. Courts § 2a—

Upon appeal from judgment of a recorder’s court dismissing the action for want of jurisdiction for that the amount demanded on the two causes of action alleged exceeded the jurisdictional amount of the court, the Superior Court may allow plaintiff to withdraw one cause of action and proceed to trial upon the other.

3. Judgments § 23—

Where the court finds that defendant in claim and delivery proceedings was in court when his attorney was allowed to withdraw from the case; and was told he would have to employ other counsel, and the case continued to the next term, the refusal of the motion made by himself and the surety on his replevin bond to set aside the judgment taken at the next succeeding term on the ground of mistake, surprise, and excusable neglect is properly refused. C. S., 600.

Appeal by defendants from Demids, J., at Marcb-April Term, 1937, of Harnett.

Affirmed.

Tbe whole matter of the litigation is carefully set forth in the judgment of Daniels, J., as follows:

“This cause coming on to be heard and being heard by and before his Honor F. A. Daniels, judge presiding, on 7 April, 1937, of Harnett County Superior Court at Lillington, North Carolina, upon motion to vacate and recall execution issued herein filed by defendants, and upon motion made by defendants to set aside the judgment heretofore rendered in this cause by reason of mistake, surprise, and excusable neglect, and upon the hearing of said motions the court finds the following facts and renders judgment as follows:

“1. That on 31 December, 1936, the defendants filed motion before the clerk of the Superior Court of Harnett County to vacate and recall execution issued on the judgment entered herein on 7 December, 1936; that plaintiff filed demurrer to said motion and said demurrer was sustained by the clerk, and defendants appealed from the clerk’s ruling to the judge of the Superior Court at term; that said motion came on for hearing before his Honor, W. C. Harris, judge, at February Term, *3901937, of Harnett Superior Court, at which time counsel for defendants made an oral motion to set aside the judgment heretofore rendered in this cause by reason of mistake, surprise, and excusable neglect, and his Honor, W. 0. Harris, judge, continued both motions to the March-April Term, 1937, of Harnett Superior Court, in order that the defendants might prepare and file their formal motion to set aside the judgment for mistake, surprise, and excusable neglect.

“2. That this action originated in the recorder’s court of Dunn, N. C., and that the maximum jurisdiction of said court, either in contract or tort, is $500.00; that in this action plaintiff filed his duly verified complaint containing two counts or separate causes of action, to wit: One for $500.00 for debt due the plaintiff by the defendant, Jonah McCall, and for possession of the personal property securing said debt and described in the claim and delivery issued in this action, and the other for $200.00 damages for the wrongful detention of said property, and asked for judgment for $500.00 on the debt for possession of said' property and $200.00 damages for wrongful detention of property.

“3. That the defendant, Jonah McCall, gave replevin bond in the sum of $1,000, with "W. J. Godwin, surety, and filed his duly verified answer setting up a counterclaim; that when this cause came on for trial in the recorder’s court of Dunn the defendant, Jonah McCall, through his counsel, moved the court to dismiss the action for want of jurisdiction and demurred ore tenus to the jurisdiction of the court; that thereupon and prior to the dismissal of the case in the recorder’s court of Dunn plaintiff offered to withdraw his count set up in the complaint for $200.00 as damages for the wrongful detention of the personal property seized under the claim and delivery issued in this action and proceed with the trial on the count for $500.00 debt and possession of the personal property; that this motion of plaintiff was declined by the court on the ground that plaintiff had no right to withdraw said count and that the court did not have jurisdiction, and the ease was dismissed on 2 January, 1936, and plaintiff appealed from said judgment and had his appeal properly- docketed in the Superior Court of Harnett County.

“4. That this cause'was placed on the calendar at the February Term, 1936, of Harnett Superior Court and came on for hearing at said term, at which time C. L. Guy, attorney representing the defendant, Jonah McCall, asked permission of the court to withdraw as counsel for the defendant, whereupon an order was entered allowing O. L. Guy to withdraw as counsel for the defendant; that the defendant, Jonah McCall, was present in person and was notified by the court, in open court, that he would have to get another attorney to represent him in the case and that the case would be continued to the June Term, 1936; that the case *391was placed on tbe calendar for trial at tbe June Term, 1936, of Harnett Superior Court, and was reached in regular order on said calendar, and tbe said ease was tried at said term before bis Honor, N. A. Sinclair, judge presiding, at wbicb time counsel for plaintiff withdrew bis count set up in tbe complaint for $200.00 for wrongful detention of tbe personal property, and tbe court proceeded to try tbe case on tbe count for $500.00 debt and possession of tbe personal property seized under tbe claim and delivery and issues were answered by tbe jury, as appears of record, and judgment signed; that neither tbe defendant, Jonah McCall, nor W. J. Godwin, surety on bis replevin bond, was present in court at tbe trial of tbe case; that tbe defendant, Jonah McCall, bad full knowledge that said case was pending for trial in tbe Superior Court and failed to employ counsel after C. L. Guy bad withdrawn as bis attorney and paid no attention to tbe case until after execution was served on W. J. Godwin, surety; that ~W. J. Godwin, surety, may have bad no formal notice that said case was pending on appeal in the Superior Court of Harnett County, but that tbe defendant, Jonah McCall, was bis agent and notice to McCall was notice to him and be is bound by tbe judgment as surety.

“5. That on 11 September, 1936, execution was issued to tbe sheriff of Cumberland County against tbe defendant Jonah McCall, and for tbe possession of tbe property seized under tbe claim and delivery issued in this action and said execution was returned with the following entry made by tbe sheriff of Cumberland County: ‘After due and diligent-search tbe property not found’; that on 7 December, 1936, execution was issued to tbe sheriff of Harnett County against tbe defendant, Jonah McCall, and W. J. Godwin, surety, and thereupon the motion to recall and vacate said execution was filed before tbe clerk of tbe Superior Court of Harnett County.

“6. That tbe plaintiff bad tbe right to withdraw bis count for $200.00 damages for wrongful detention of personal property, and upon bis offering to withdraw said count in tbe recorder’s court of Dunn, tbe said recorder’s court of Dunn bad jurisdiction of tbe count for $500.00 debt and possession of tbe personal property and should have proceeded with tbe trial on said count; that tbe plaintiff bad right to withdraw bis said count of $200.00 damages at tbe time tbe case came on for trial in tbe Superior Court, and upon bis withdrawal of tbe same at that time tbe Superior Court bad jurisdiction of tbe count for $500.00 debt and possession of tbe personal property, and tbe judgment entered by said court is a valid judgment.

“7. That tbe court finds no excusable neglect on tbe part of either tbe defendant, Jonah McCall, or W. J. Godwin, surety on bis replevin bond.

*392“8. That the ruling of the clerk on the demurrer filed by the plaintiff to the motion of the defendants to vacate and recall the execution is hereby sustained and the motion of the defendants to set aside judgment on the grounds of mistake, surprise, and excusable neglect is denied.”

The defendants excepted and assigned error to the judgment as signed and appealed to the Supreme Court.

J. Robert Young and J. A. McLeod for plaintiff.

R. L. Godwin for defendants.

Per Cueiam.

In the finding of facts in the. court below is the following : “That when this cause came on for trial in the recorder’s court of Dunn the defendant, Jonah McCall, through his counsel, moved the court to dismiss the action for want of jurisdiction and demurred ore tenus to the jurisdiction of the court; that thereupon and prior to the dismissal of the case in the recorder’s court of Dunn plaintiff offered to withdraw and moved the court to be allowed to withdraw his count set up in the complaint for $200.00 as damages for the wrongful detention of the personal property seized under the claim and delivery issued in this action, and proceed with the trial on the count for $500.00 debt and possession of the personal property; that this motion of plaintiff was declined by the court on the ground that plaintiff had no right to withdraw said count and that the court did not have jurisdiction, and the case was dismissed on 2 January, 1936, and plaintiff appealed from said judgment and had his aj)peal properly docketed in the Superior Court of Harnett County.”

On appeal in the Superior Court “plaintiff withdrew his count set up in the complaint for $200.00 for wrongful detention of the personal property, and the court proceeded to try the case on the count for $500.00 debt,” etc. The maximum jurisdiction of the recorder’s court of Dunn, N. C., either on contract or tort is $500.00.

In Jones v. Palmer, 83 N. C., 303 (304), Ashe, J., said: “This is a suit brought for two causes of action or, in other words, an action containing two distinct counts, the one to recover a debt of fifty dollars and the other to recover specific property. It does not follow that because the magistrate had no jurisdiction of one count he therefore had none of the other. . . . But even if the magistrate had no jurisdiction of the second count he most clearly had of the first, and there is no reason why a want of jurisdiction or defect in the second count should deprive the justice of jurisdiction of the case. One bad count in a declaration never vitiates those that are good though, in such a case if there be a general verdict on both counts, no judgment can be rendered. Mitchell v. Durham, 13 N. C., 538; Honeycut v. Angel, 20 N. C., *393 449. . . . Tbe plaintiff bad tbe right to enter a nolle prosequi to either or all of tbe counts or causes of action in bis complaint. Sanders Bep., 207, note 2. His motion for leave to amend bis complaint and waive tbe second count was virtually asking leave of tbe. court to enter a nolle prosequi as to that count, a thing be bad tbe right to do without tbe leave of tbe court. His Honor committed an error in disallowing tbe motion of tbe plaintiff and dismissing tbe action. Tbe plaintiff bad tbe right to enter a nolle prosequi as to tbe second count and proceed on tbe first.”

We think this case is governed by tbe Jones case, supra. Tbe facts in Perry v. Pulley, 206 N. C., 701, are distinguishable. We think tbe court correct in refusing to set aside tbe judgment on tbe ground of mistake, surprise, and excusable neglect. N. C. Code, 1935 (Michie), sec. 600. Tbe facts found show clearly no mistake, surprise, and excusable neglect.

Tbe judgment of the court below is

Affirmed.