Marler-dalton-gilmer Co v. Wadesboro Clothing & Shoe Co

• Decision Date: 21 April 1909
• Citation: 150 N. C. 519,64 S.E. 366
• Court: North Carolina Supreme Court
• Parties: MARLER-DALTON-GILMER CO. v. WADESBORO CLOTHING & SHOE CO.

64 S.E. 366

(150 N. C. 519)

MARLER-DALTON-GILMER CO.

v.WADESBORO CLOTHING & SHOE CO.

Supreme Court of North Carolina.

April 21, 1909.

1. Justices of the Peace (§ 192^*)—Review-Writ of Recordari.

The writ of recordari may be used, under Revisal 1905, § 584, either as a substitute for an appeal from a judgment of a justice of the peace to have a new trial on the merits, or as a writ of false judgment.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. § 759; Dec. Dig. § 192.*]

2. Process (§ 141*) — Return — Conclusiveness.

The sheriff's return of a summons with an entry of service is sufficient, prima facie, that it has been served as the statute directs.

[Ed. Note.—For other cases, see Process, Cent. Dig. § 189; Dec. Dig. § 141.*]

3. Justices of the Peace (§ 202*)—Review-Writ of Recordari—Proceedings to Procure.

On an application for a writ of recordari on the ground that a defendant has been improperly joined merely to confer jurisdiction, whether there was a misjoinder of defendants is not before the court as on demurrer or answer.

[Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 202.*]

4. Justices of the Peace (§ 81*)—Process-Service Outside of County.

Revisal 1905, § 1447, providing that no process shall be issued by a justice of the peace to any county other than his own, unless one or more bona fide defendants shall reside in, and also one or more bona fide defendants shall reside outside of, his county, in which case only he may issue process to any county in which any such nonresident defendant resides, makes the right to serve process on a defendant outside the county of the justice depend somewhat on the good faith of plaintiff in joining the defendants as parties.

[Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 81.*]

5. Justices of the Peace (§ 199*)—Review-Writ of Recordari.

An applicant for a writ of recordari must show merit in his case.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. § 773; Dec. Dig. § 199.*]

6. Justices of the Peace (§ 202*)—Review-Writ of Recordari—Laches.

An applicant for a writ of recordari must show that he has not been guilty of laches.

[Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 202.*]

7. Appeal and Error (§ 1008*)—Review-Questions of Fact—Findings by Court.

The Supreme Court is concluded by the facts found by the court below.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. 3955-3969; Dec. Dig. § 1008.*]

Appeal from Superior Court, Forsyth County; Councill, Judge.

The Marler-Dalton-Gilmer Company recovered a judgment against the Wadesboro Clothing & Shoe Company in a justice's court, and thereafter defendant applied to the superior court for a writ of recordari and a supersedeas. Judgment for plaintiff denying the application, and defendant appeals. Affirmed.

B. S. Womble and McLendon & Thomas, for appellant.

L. M. Swink, for appellee.

WALKER, J. The plaintiff sold a case of merchandise to the defendant for $118.18, and shipped the same to the defendant at Wadesboro, N. C, by the Southern Railway Co. and the Seaboard Air Line Railway Co., taking a bill of lading therefor. The defendant represented to the plaintiff that it had not received the goods, and refused to pay the debt, whereupon the plaintiff sued the two railway companies and the defendant before a magistrate in Forsyth county, and caused a summons to be issued for the defendant, in the manner prescribed by the statute, to Anson county. This summons was returned by the sheriff of the latter county with an entry of service indorsed on the summons. At the trial before the justice the defendant did not appear. Upon the evidence introduced judgment was rendered against the defendant for the amount of the debt, with interest and costs, and in favor of the railway companies. The defendant received notice of the judgment on July 9, 1908. The next regular term of the superior court of Forsyth county commenced on July 27, 19o8. At the next, or September, term, in the year 1908, the defendant applied to the superior court for a writ of recordari and a supersedeas, upon the general ground that the Southern Railway Company had been improperly joined as a party defendant in the suit before the justice, for the purpose of conferring jurisdiction upon him. The judge, at the request of the defendant, found and stated the facts, and, among other findings, are these: That the defendant admitted the debt, and that the plaintiffs acted in good faith in joining the railway companies as defendants, and that the joinder was not made for the purpose of conferring jurisdiction. He further found that the defendant's prayer for relief before him was that it be allowed to plead to the original action. In the petition for the recordari, the plaintiff prayed that the papers in the cause be transmitted to the superior court by the justice.

The writ of recordari may be used, under the statute (Revisal 1905, § 584), either as a substitute for an appeal, or as a. writ of false judgment. In Weaver v. Mining Co., 89 N. C. 198, it was said by the court that "the writ of recordari under the former practice, and retained in the new, as has been often declared, is used for two purposes; the one, in order to have a new trial of the case upon its merits—and this is a substitute for an appeal from a judgment rendered before a justice—the other, for a reversal of an erroneous judgment, performing in this re-spect the office of a writ of false judgment." See, also, Caldwell v. Beatty, 09 N. C. 399; Morton v. Rippy, 84 N. C. 611. In the two cases last cited it is held that the writ may be resorted to in the first instance, and without moving before the justice to set aside the judgment, where it is alleged that the latter had no jurisdiction of the defendant, no process having been served...