Walker v. . Odom , 185 N.C. 557 ( 1923 )

Civil action against the sheriff of Cherokee County, tried upon the following issues:

"1. Did the defendant negligently fail to execute the warrant delivered to him by the plaintiff, as alleged in the complaint? Answer: ``Yes.'

"2. What sum, as penalty, is plaintiff entitled to recover? Answer: ``$100.'"

Judgment on the verdict in favor of plaintiff. Defendant appealed. This was a civil action brought before a justice of the peace against the sheriff of Cherokee County (558) to recover a penalty of $100 for failing and neglecting to serve and to return a warrant, to him lawfully tendered or delivered, and which it was his duty to execute. The case was tried de novo on appeal to the Superior Court. The warrant, which it is alleged the defendant negligently failed to execute, was sworn out by the plaintiff before P. E. Nelson, a justice of the peace, for the arrest of one Ernest King. The present suit was instituted by the plaintiff before T. N. Bates, another justice of the peace of Cherokee County.

The only question presented for our decision is whether the plaintiff should have proceeded by a motion in the original cause, as provided by C.S. 3936, or by an independent action, as authorized by C.S. 4396, when there has been a violation of said statute. His Honor held that the defendant was not liable for failing "to return" said warrant under C.S. 4396, but that he was liable for negligently failing "to execute" the same under C.S. 3936. In permitting the plaintiff to proceed under this latter section, the court, in its discretion, treated the summons and complaint as a motion in the original cause. This he would have been authorized to do under our decisions had the original cause reached the Superior Court of Cherokee County. Craddock v. Brinkley, 177 N.C. 127; Jarman v. Saunders,64 N.C. 367. But it has been held with us that an independent action may not be treated as a motion in the original cause when brought in another county (Rosenthal v. Roberson, 114 N.C. 594); and we apprehend the same ruling should apply in a case like the present, where the original action never reached the Superior Court and the instant suit was started before a different justice of the peace.

A nonsuit having been entered on the cause of action, brought under C.S. 4396, for refusal or neglect to return the warrant, the court was without authority to treat the summons and complaint as a motion in the original cause, wherein the defendant was liable to be emerced for negligently failing to execute said warrant under C.S. 3936, because the original cause of action and the present suit were never in the same court. Jurisdiction cannot be sustained where it requires a jumping from one court to another. The statute not only authorizes an emercement, but it also prescribes the method by which it is to be laid; and the rule of law is that whenever a statute does this no other method of enforcement is to be pursued than the one prescribed. S. v. Snuggs, 85 N.C. 542.

The action of his Honor in directing a nonsuit on the cause of action brought under C.S. 4396, for failing "to return" the warrant is not before us for review, as the plaintiff has not appealed.

From the foregoing, it follows that there was error in proceeding (559) further after the nonsuit as above indicated.

Reversed.

Cited: Nance v. Fertilizer Co., 200 N.C. 707; Walston v. ApplewhiteCo., 237 N.C. 424.