Practice — Amendment of Summons — Jurisdiction of Justice — Amount of Sum Demanded — Effect of Remittitur of Excess of $200 — Filing of Account — Conduct of Trial — Attorney.
1. Where a summons issued by a justice of the peace did not state the sum demanded, an amendment permitting the blank to be filled was properly allowed on the trial of the action on appeal. It served only to show and not to confer jurisdiction, and was retroactive.
2. Where the sum demanded was not stated in a summons issued by a justice, but the complaint demanded over $200, a remittitur before the justice of the excess over $200 sufficiently showed the jurisdiction of the justice.
3. In an action on a contract for sawing timber it is not necessary to set out the items in the pleadings; section 591 of The Code being applicable only to actions brought under the "book-debt law."
4. While it is the duty of a trial judge to see that no litigant should be abridged of his rights in the trial of an action, he should also see that the public time is not uselessly consumed: Therefore, where counsel persisted in repeating questions and asking others entirely foreign to the subject-matter of the trial, and needlessly protracted the trial, it was not error in the judge, after repeatedly cautioning the counsel, to stand the witness aside.
CLARK, J.
The amendment permitting the blank in the summons to be filled was not to confer, but to show, jurisdiction. Cox v. Grisham, 113 N.C. 279; Mfg. Co. v. Barrett, 95 N.C. 36; Leathers v. Morris, 101 N.C. 184; Allen v. Jackson, 86 N.C. 321. It was properly allowed. The Code, sec. 908; Henderson v. Graham, 84 N.C. 496; S. v. Norman, 110 N.C. 484. In fact, the remittitur before the justice of the excess over $200 sufficiently showed jurisdiction. Noville v. Dew, 94 N.C. 43; Dalton v. Webster, 82 N.C. 279; The Code, sec. 835. Had the summons as issued stated the amount, that would have settled the jurisdiction. Starke v. Cotton, ante, 81. The amendment was retroactive, nunc pro tunc. The second and third exceptions were without merit and need no discussion. Nor was it requisite that the items should be set out in the pleadings. The Code, sec. 259. A bill of particulars could have been ordered by the court if demanded. The Code, sec. 840; Rule 10. The Code, sec. 591, only applies to actions brought under the "book-debt law," and has no bearing in a case like this.
The conduct of counsel in repeating questions and asking questions entirely foreign to the matter in hand, after repeated caution by the court, so as to needlessly protract the trial, amply justified the standing aside of the witness. The judge is charged with the duty of having the trial properly conducted. He should take care that the time of the court is not wasted. Courts are very expensive. While a judge should see that matters are not so hurried that any litigant is abridged of his rights, he should also see that the public time is not (303) uselessly consumed. He is not a mere moderator, but the court itself, and owes duties to the public as well as to litigants.
No error.
Cited: Elliott v. Tyson, 117 N.C. 116; Whitaker v. Dunn, 122 N.C. 104; Lassiter v. R. R., 136 N.C. 95; Teal v. Templeton, 149 N.C. 34; Hosiery Mills v. R. R., 174 N.C. 453; Shoe Store Co. v. Wiseman, ib., 717.