Forbes v. Mcguire

• Decision Date: 12 March 1895
• Citation: 116 N.C. 449,21 S.E. 178
• Court: North Carolina Supreme Court
• Parties: FORBES . v. McGUIRE.

21 S.E. 178

116 N.C. 449

FORBES .

v.McGUIRE.

Supreme Court of North Carolina.

March 12, 1895.

Justices of the Peace—Jurisdiction—Proceedings on Appeal.

1. A justice of the peace has no power, after he has transmitted an appeal from his judgment and all the papers to the reviewing court.to giant a motion to set aside his judgment for want of jurisdiction.

2. Pleadings on appeal from a justice are in the discretion of the court, and an adjudication that the matter could be better determined upon the trial de novo upon the original appeal, made on the denial of a motion to dismiss for want of jurisdiction in the justice, pending an appeal from his judgment, is simply a continuance of the matter to the next regular term of the appellate court, and does not give defendant, who had not before pleaded, the right to plead to the jurisdiction.

3. It is not error in such case, where no want of jurisdiction is apparent from the record, to deny defendant's motions on the hearing of the original appeal to dismiss for want of, and for leave to plead defenses to, the jurisdiction.

Appeal from superior court, Granville county; Shuford, Judge.

Action by W. S. Forbes against K. H. McGuire to recover an amount due by account. Prom a judgment for plaintiff, defendant appeals. Affirmed.

J. W. Graham and J. B. Batchelor, for appellant.

Puller, Winston & Fuller, for appellee.

PAIRCLOTH, C. J. 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 December 10, 1892, the justice transmitted the appeal and all the papers to the superior court. Afterwards, on April 25, 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 the 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, 1891, 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...