State ex rel. Bryan v. Rousseau, 71 N.C. 194 (1874)

June 1874 · Supreme Court of North Carolina

71 N.C. 194

STATE on the relation of R. B. BRYAN v. A. L. ROUSSEAU and G. H. BROWN.

In an action upon a bond, the' stOfli demündéd is the penalty of the bond, and not the damages claimed’for' the' breach thereof i

Therefore, where the penalty of the' bon'd exceeds two hundred dollars, .suit cannot be brought before a Justice' of the Peace,-

-i(State exrel. Fell and Bro. v. Porter et ah, 69 N.- 0.- 140# Cited and approved.)

Civil action against the defendant, Rousseau,- as County 'Treasurer of Wilkes county, commenced in a Justice’s Court, from whence it was carried by appeal to the Superior Court of Wilees, where it was tried before Mitchell, c/1, at Spring Term, 1874.

The-facts, -so far as are necessary to an understanding of the -opinion, are as follows:

This action was begun before a Justice of the Peace against the defendant, Rousseau, Treasurer of Wilkes county, and the sureties upon his official bond for the year 1870. It was admitted that Rousseau was the treasurer, and the execution of the bond by himself and the defendants as his sureties, in the sum of-'$12,000 was also admitted.

The action was brought upon a county order for $125.80, •which was the sum claimed for damages by reason of the ¡breach of the bond.

.Armiield <& Folk, for defendants.

Fwrches, for plaintiff.

Bynum| Ji

The State on the relation of Fell & Bro. v. Porter et al, 69 N. C. Reports 140, is decisive [of this case. It is there' held that if the action is on a bond the penalty of which exceeds two hundred dollars, the penalty of the bond is the sum demanded, although the damages claimed for the breach thereof, is less than two hundred ■dollars. Sucli is the construction put upon the Constitution, Art. 4, secs. 13, 33; and Bat. Rev., chap. 80, sec. 13, cannot have the efiect of changing the jurisdiction of the Courts, as fixed by the Constitution. It follows that this action, having been brought on a penal bond for the sum of twelve thousand dollars, before a Justice of the Peace, ought to have been dismissed for want of jurisdiction.

Feb CueiaM. Judgment reversed and action dismissed.