Forbes v. . McGuire , 116 N.C. 449 ( 1895 )

The plaintiff instituted this action before a justice of the peace for $195.33, due by account, and at the trial in December, 1892, the defendant was present and admitted the debt. Judgment was entered and defendant appealed, and on 10 December, 1892, the justice transmitted the appeal and all the papers to the Superior Court. Afterwards, on 25 April, 1893, upon notice, defendant moved before the justice to set aside his judgment on the ground that he had no jurisdiction of the subject-matter, which was refused on the ground that he had no power to do so pending the appeal in the Superior Court, and defendant prayed an appeal. At July Term, 1893, a motion to dismiss and quash the proceedings was denied, and his Honor adjudged that "The matter could be better determined upon the trial de novo upon the original appeal when the evidence and facts should be before the court." At January Term, 1894, the cause came on regularly to be heard upon defendant's appeal, when defendant moved to dismiss for want of jurisdiction in the justice of the peace, and for leave to plead defenses to the jurisdiction, which motions were refused, and plaintiff's motion for judgment was allowed and the defendant appealed.

Leave to plead at the trial term was discretionary with his Honor and his decision is not reviewable here. Clark's Code, 228. It was conceded here that the defendant had no defense, unless the order of (451) Brown, J., at July Term, 1893, gave him the right to plead to the jurisdiction. We construe that order to be simply a continuance of the whole matter to the next regular term of the Superior Court. It was no adjudication upon the rights of either party. In April, 1893, it was not in the power of the justice to make any order in the matter for the reason that the action was then pending in the Superior Court. It is true that his docket contained the record of what he had previously done, but he could do no more, except to further certify at the instance of the appellant or in obedience to an order of the court, in order to perfect or make the record above speak the truth. He could not make a new record.

Then, as no plea was entered anywhere, and as we do not discover in the record any want of jurisdiction, we see no error below.

Judgment affirmed.

Cited: Howland v. Marshall, 127 N.C. 432; Cauley v. Dunn, 167 N.C. 33.