Arnold v. Shepherd, 15 N.C. 49, 4 Dev. 49 (1833)

Dec. 1833 · Supreme Court of North Carolina

15 N.C. 49, 4 Dev. 49

Esek Arnold v. John Shepherd.

®n an appeal from the judgment of a justice of the peace, after a plea in the County Court, the defendant cannot object to any irregularity which took place before the justice, as that the judgment was rendered after the return day of the warrant.

It appeared from the transcript of the record, that the plaintiff commenced his action by a warrant, dated the Sd of January, 1831, returnable before a justice of the peace within thirty days after the date thereof, Sundays excepted; that a judgment was rendered thereon, on the 22dFebruary, 1831, and au appeal taken from that judgment to the County Court; that pleas were there entered, issues joined, a verdict given and a judgment render-, ed; that from tins judgment there was an appeal to the Superior Court.

On the trial before Mártir, Judge, at Moore, on the last Spring Circuit, upon opening the case, it appeared that the judgment before the justice of the peace, liad been rendered more than thirty days after the date of the warrant, and thereupon his Honor nonsuited the plaintiff who appealed.

No counsel appeared for either party.

Gastor, Judge,

after stating the case as above, proceeded : By our acts of 1794, and 18Í33, (Rev. chs. 414, & 627,) the justice has authority to adjourn or postpone the tidal on good cause shewn, so that such postponement shall not exceed thirty days. Although the acts do not expressly require that such postponement shall be made in writing, it is certainly proper that it should be so, and probably a neglect to endorse such continuance on the warrant, would render a judgment after the res turn day of the warrant erroneous. If so, the appropriate remedy for reversing the judgment would be by a writ of false judgment, and it is not certain that this could be done on an appeal. However this may be, we hold that after pleas are entered in the County Court, all objections to irregularities before the justice come too late. The matter then to be tried, is such as arises from the warrant and tlie pleadings, and tbe regularity or irregularities of the judgment vacated by the appeal, ,g wj10]jy imraatei'ial to the controversy. But iivthis case, the verdict in the County Court cured all discontinuances and miscontinuances antecedent to such verdict. The nonsuit ought to be set aside and a new trial awarded.

Per Curiam — Judgment reversed.