Fisher v. Bullard

• Decision Date: 12 November 1891
• Citation: 13 S.E. 799,109 N.C. 574
• Parties: Fisher v. Bullard.
• Court: North Carolina Supreme Court

13 S.E. 799

109 N.C. 574

Fisher

v.Bullard.

Supreme Court of North Carolina.

Nov. 12, 1891.

Justice of the Peace—Jurisdiction—Penalties.

Under Code N. C. § 871, forbidding a justice of the peace to issue process to any county other than his own where there is only one defendant, and section 191, (applicable to proceedings in superior courts,) providing that an action for the recovery of a penalty must be brought in the county where the cause arose, a justice has jurisdiction of an action against a resident of his county for a penalty incurred in another county, in the absence of any provision extending the provision of section 191 to justices' courts.

Appeal from superior court, Cumberland county; R. F. Armfield, Judge.

Action by John Fisher against Henry Bullard to recover the statutory penalty for setting fire to woods. From an order dismissing the action on the ground that the justice of the peace before whom it was brought, and who rendered judgment against defendant, had no jurisdiction, plaintiff appeals. Reversed.

F. R. Cooper, for appellant.

Clark, J. This was a civil action, begun before a justice of the beace in Cum-berland county against a defendant residing in said county, to recover the penalty of $50, incurred under Code, §§ 52, 53, by any one setting fire to any woods not his own property. The woods burned lay wholly in Sampson. The defendant moved to dismiss for want of jurisdiction, which was refused, and judgment given against him. On appeal to the superior court, the motion was renewed in that court on the same ground, and allowed. The Code, § 871, forbids a justice to issue process to any county other than his own unless there is more than one bona tide defendant, and one of them shall reside in another county. That not being the case here, a justice of the peace in Sampson could not reach the defendant, so that the case might be tried there, unless he happened to be caught in Sampson. The provision for indorsing warrants issued in another county (Code, § 1136) is restricted to criminal cases. The justice of the peace in Cumberland, having jurisdiction of the person of the defendant, by service of process upon him, and of the subjectmatter, —a penalty of fifty dollars, —was the proper officer before whom to bring the action, unless there is some statute forbidding it. It is claimed that this is done by Code, § 191, which provides that an action for the recovery of a penalty must be brought in the county where the cause of action arose....