State v. Carnegie

• Decision Date: 30 March 1927
• Docket Number: (No. 142.)
• Citation: 137 S.E. 308
• Court: North Carolina Supreme Court
• Parties: STATE et al. v. CARNEGIE.

(193 N.C. 467)

137 S.E. 308

STATE et al.

v.CARNEGIE.

(No. 142.)

Supreme Court of North Carolina.

March 30, 1927.

Appeal from Superior Court, Pitt County; Sinclair, Judge.

Bastardy proceedings by the State and Glossie Briley against Willie Carnegie. Judgment of the Superior Court reversing the decision of a justice, who refused to enter judgment on defendant's appeal bond, and entering judgment thereon against M. G. Duke, defendant's surety, and defendant and surety appeal. Reversed.

The controversy is succinctly stated in the state's brief, as follows:

"Proceedings in bastardy were taken out by Glossie Briley before Justice of the Peace John I. Smith. On the trial the justice of the peace found that the defendant, Carnegie, was the father of the child, and required him to pay Glossie Briley $100 and the costs of the action. The defendant appealed, and the papers were sent to the county court of Pitt county. On the matter being called to the attention of the judge of the county court, he, realizing that the appeal was improperly taken in his court, remanded the cause to John I. Smith, the justice of the peace who tried it, this on the ground that the statute creating said court (section 12, subsec. (a), of chapter 681, Public Local Laws of 1915), gave this court concurrent jurisdiction with the justice of the peace in all civil matters, actions, and proceedings 'which are now or may hereafter be given to justices of the peace of Pitt county.'

"It is manifest from this that in such civil actions there was no right of appeal to the county court, but the appeal must be taken directly to the superior court. When the cause came up for hearing again before John I. Smith, justice of the peace, Carnegie withdrew the appeal, and he was committed to jail until allowance and cost in the cause were paid. Motion was then made by the plaintiff for judgment on the original bond given at the time that the appeal was taken to the county court. This motion was denied by the justice of the peace, and the plaintiff appealed to the superior court. In the superior court his honor, Judge Sinclair, reversed the ruling of the justice of the peace, and entered up judgment against the surety of Carnegie, M. G. Duke. This bond Is in the usual form of such bond provided in Simms' Manual of Law and Forms, page 551 of 1924 edition". His honor places his judgment upon the terms used in the bond: 'And abide by and perform the order of the court' The contention of the defendant was that he did abide by and perform the order of the county court which remanded the case to the justice of the peace, and he did appear before the justice of the peace; consequently, all the conditions of this recognizance on this appeal in bastardy has been conformed to."

The material part of the bond given, is as follows:

"We, M. G. Duke and Willie Carnegie of said county, acknowledge ourselves bound to the state of North Carolina, in the sum of $125. The condition of this obligation is such that, if the said Willie Carnegie shall personally appear at the next term of county court to be held in and for the county of Pitt, on the second Monday in March next, and to abide by and perform the order of the court then and there to answer a charge preferred against Willie Carnegie for Bastardy, then this obligation to be null and void; otherwise to remain in full force and effect, M. G. Duke. [Seal.]

"Willie Carnegie. [Seal.]"

J. C. Lanier, of Greenville, for appellant Duke.

Dennis G. Brummitt, Atty. Gen, and Frank Nash, Asst. Atty. Gen., for the State.

Julius Brown, of Greenville, for appellee Briley.

CLARK SON, J. The state's brief says, "Upon this statement of facts, we submit the case to the court."

"Bastardy proceedings are civil and not criminal in their nature, and are...