The decisive question arising on this appeal is: Where an appeal has been taken to the Superior Court from judgment of a specially created recorder’s court in action on contract over which that court has concurrent original jurisdiction with the Superior Court, can the Superior Court permit an amendment to the complaint which sets up an equitable cause of action for the reformation of contract, over which the recorder’s court has no jurisdiction? The answer is “No.”
The recorder’s court of White Oak and Buckhorn Townships, Wake County, created by special act of the Legislature, Public Laws 1917, ch. 282, as amended by Public Laws 1929, eh. 497, is a court of limited jurisdiction, both as to territory and subject matter. The original act, sec. 12%, provides in part that the court “shall have concurrent original jurisdiction with the Superior Court in all civil actions arising out of contract where the sum demanded does not exceed the sum of $500 . . .” It further provides, sec. 14, that “in all civil actions and matters where this Court has jurisdiction and where a justice of the peace does not have jurisdiction, the plaintiff in such actions may bring an original suit, either in recorder’s court as prescribed by this act or in the Superior Court of Wake County, at his election . . .”
The recorder’s court, in the case before us, had original concurrent jurisdiction with the Superior Court of the cause of action as originally alleged. Having been instituted in the recorder’s court, the action is limited in its scope by the jurisdiction with which that court is clothed by the acts of the Legislature creating it. “The rule is where there are courts of equal and concurrent jurisdiction the court possesses the case in which jurisdiction first attaches.” Merrill v. Lake, 16 Ohio, 373, quoted by Pearson, C. J., in Childs v. Martin, 69 N. C., 126. This rule has been applied in numerous cases in this State. In re Schenck, 74 N. C., 607; Haywood v. Haywood, 79 N. C., 42; S. v. Williford, 91 N. C., 529; Worth v. Bank, 121 N. C., 343, 28 S. E., 488; Hambley v. White, 192 N. C., 31, 133 S. E., 399. See, also, McIntosh, North Carolina Prac. & Proc., p. 62.
In McIntosh, North Carolina Prac. & Proc., p. 65, it is said: “For all courts established by special or general laws, whether the jurisdiction is exclusive or concurrent with the Superior Court, the appellate jurisdiction lies in the Superior Court, as the head of the judicial system below the Supreme Court.” Rhyne v. Lipscombe, 122 N. C., 650, 29 S. E., 57; Taylor v. Johnson, 171 N. C., 84, 87 S. E., 955.
*589Tbe jurisdiction of the Superior Court on appeal is derivative only. Barham v. Perry, 205 N. C., 428, 171 S. E., 614; Dees v. Apple, 207 N. C., 763, 178 S. E., 557.
“There is a general rule, frequently approved in our decisions, that if an inferior court or tribunal has no jurisdiction of a cause, an appeal from its decision confers no jurisdiction upon the appellate court,” Adams, J., in Hall v. Artis, 186 N. C., 105, 118 S. E., 901, citing-authorities.
The recorder’s court of White Oak and Buckhorn Townships, being without jurisdiction of matters in equity, is without power to administer affirmatively an equity. Therefore, the complaint as amended states a cause of action of which the recorder’s court had no jurisdiction. The legal effect is the institution of a new action. Hence, the amendment was improperly allowed. Capps v. Capps, 85 N. C., 408; Hall v. Artis, supra; Perry v. Pulley, 206 N. C., 701, 175 S. E., 89.
Plaintiff contends that the reformation of the contract of insurance is an incidental question necessary to a proper determination of the principal matter of the action, and that, therefore, the recorder’s court must necessarily have jurisdiction. He relies upon the,case of Levin v. Gladstein, 142 N. C., 482, 55 S. E., 371, and cases therein cited. These eases do not support the contention as applied to the question at hand. In Levin v. Gladstein, supra, the plaintiff sued in the justice of peace court on a judgment for $133 obtained in the State of Maryland. The defendant set up the defense that the judgment was obtained by fraud. The Court said: “In view of the frequent decisions of this Court, that while a justice’s court has no jurisdiction to administer or enforce an equitable cause of action, a defendant may interpose an equitable defense in that court. In Lutz v. Thompson, 87 N. C., 334, Ruffin, J., speaking to the question, said: . . . And though it cannot affirmatively administer an equity, it may so far recognize it as to admit it to be set up as a defense.’ ” Cheese Co. v. Pipkin, 155 N. C., 394, 71 S. E., 442; Fertilizer Co. v. Bowen, 204 N. C., 375, 168 S. E., 211. This is a clear statement of the extent to which the court without equitable jurisdiction may consider matters in equity.
The act creating the recorder’s court of White Oak and Buckhorn Townships provides no “system of appeals” to the Superior Court in civil actions. (N. C. Constitution, Art. IY, sec. 12.) However, no question is raised as to the case being properly in the Superior Court on appeal, whether by certiorari, or recordari (Taylor v. Johnson, supra), or otherwise.
The order of the court below allowing the amendments affects a substantial right of the defendant — and the same is
Reversed.
Seawell, J., took no part in the consideration or decision of this case.