Love v. Huffines
| Citation | 66 S.E. 304,151 N.C. 378 |
| Parties | LOVE et al. v. HUFFINES. |
| Decision Date | 01 December 1909 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Guilford County; Long, Judge.
Action by John L. Love and another against D. R. Huffines. From a judgment dismissing an appeal to the Superior Court from a judgment of a Justice's Court in favor of plaintiffs defendant appeals. Reversed and remanded.
A defendant in justice's court served notice of appeal on August 16th, the day of the rendition of the judgment for plaintiff. The appeal was filed in the clerk's office September 24th. A criminal term was held on August 22d, and a civil term on September 19th. The clerk's fee for docketing the case was not tendered or demanded, and the case was docketed by the clerk September 24th. Held, that defendant failed to enforce compliance with Revisal 1908, § 1493, requiring the justice within 10 days after service of notice of appeal to make a return to the appellate court and file with the clerk thereof the papers, etc.
A. L Brooks, for appellant.
Scott & McLean and John A. Barringer, for appellees.
This is an action, originally commenced before a justice of the peace, to recover the sum of $194.78. We will say, in the beginning, that we do not approve the method of pleading generally adopted in the state, of issuing a summons for a defendant merely requiring him to appear and answer a complaint upon a cause of action not stated in the summons, and not afterwards stated before the magistrate and recorded in his docket. We again call the attention of the profession to the provision of the statute that a plaintiff must somewhere, either in the summons or in the complaint before the justice, state substantially his cause of action, and the defendant must also set forth his defense in some way. The form of the pleadings is disregarded; but something must be done by the pleader (used in its technical meaning) to advise the court of the issues between the parties. The only allegation in this case is that $194.78 is due by the defendant and demanded by the plaintiff. It may be money due upon a broken contract or for the conversion of property, and, in the last case, the court would have no jurisdiction. We infer, from the use of the word "indebted," that the cause of action is founded on contract, and therefore we will assume, upon this small bit of allegation, that the justice had jurisdiction; but we call the attention of the very able judges of our superior courts to the very careless manner in which pleadings before justices of the peace are framed, and urge upon them to require a more explicit statement of the causes of action and defenses, by amendment in their courts.
It appears, in this case, that the plaintiff commenced his action on August 15, 1904, the defendants filed answers, and the parties and their attorneys personally appeared before the justice on August 16, 1904. Evidence was introduced by the respective parties, and, after hearing the case, the justice entered a judgment for the plaintiff on August 16, 1904, the day agreed upon for the trial. It also appears that a criminal term of the superior court of Guilford county was held on the 22d day of August, 1904, and a term for the trial of civil cases on September 19, 1904. The appeal in this case was not docketed until September 24, 1909. The case was not calendared or continued until May term, 1909, when the case was called, and, after a jury had been impaneled, the plaintiff's counsel moved to dismiss the appeal and to affirm the judgment, which motion was allowed by the court.
The statute provides as follows: "If the appellant shall fail to have his appeal docketed as required by law, the appellee may, at the term of said court next succeeding the term to which the appeal is taken, have the case placed upon the docket, and upon motion, the judgment of the justice will be affirmed." Revisal 1908, § 607. "The justice shall, within ten days after the service of the notice of appeal on him, make a return to the appellate court and file with the clerk thereof, the papers, proceedings and judgment in the case, with the notice of appeal served on him." Revisal 1908, § 1493. The defendant utterly failed to enforce compliance with the second provision of the statute above quoted. The notice of appeal was served on August 16, 1904, the day the judgment was rendered, and the appeal was filed in the clerk's office on September 24, 1904. A criminal court was held in the county of Guilford on August 22, 1904, and on September 19, 1904, a civil term was held, according to the law in such case made and provided. The clerk's fee for docketing the case was not tendered or demanded. The case was docketed by the clerk on September 24, 1904. It also appears that the case was placed on the calendar for trial at the September term of the court, and that prior to that time the defendant, after notice to plaintiff, had taken the deposition of a witness to be used at the trial, and that, when the case was called for trial at the September term, a jury was impaneled, and, after the court had commenced the trial before the jury, the plaintiffs moved to dismiss the appeal, upon the ground that the defendant had not complied with the statute in the particulars already mentioned.
We think the court erred in dismissing the appeal. If the plaintiffs had not slept upon their rights and had made their motion to dismiss in apt time, we probably would have decided with them. Johnson v. Andrews, 132 N.C. 376, 43 S.E. 926; Blair v. Coakley, 136 N.C. 408, 48 S.E. 804; Lentz v. Hinson, 146 N.C. 31, 59 S.E. 144; Pants Co. v. Smith, 125 N.C. 588, 34 S.E. 552. In the cases cited we held that, "upon a full consideration of this statute, the court has decided that the appeal must be taken and the return made to the next term, whether criminal or civil, under the provisions of the statute." In the case of Blair v. Coakley, cited above, the question as to when and how an appeal should be taken from the inferior courts to the superior court (being a court of record) is fully discussed and the authorities cited; but this case, we think, does not come within the principles as stated in those cases. The justice had jurisdiction of the cause of action and, by the service of process, of the parties. The superior court, by the docketing of the case, acquired, derivatively, the jurisdiction of the justice, and nothing more. Raisin v. Thomas, 88 N.C. 148, and cases cited, especially Love v. Rhyne, 86 N.C. 576. But it does not follow that the appellee, by whom the judgment before the justice was obtained, could not waive his right to object to any irregularities in the procedure by which the case was carried into the superior court, by his own laches, or by such conduct as would be tantamount to an admission, on his part, that the irregularities had worked no harm to him, and therefore he was willing to accept the jurisdiction of the higher court, as derived from the lower court, and try the case in the former court upon its merits. This is not a case wherein there is any inherent lack of jurisdiction in the magistrate or the superior court of the cause of action or the person. If it had...
To continue reading
Request your trial