Plummer v. Wheeler, 44 N.C. 472, 1 Busb. 472 (1853)

Aug. 1853 · Supreme Court of North Carolina

44 N.C. 472, 1 Busb. 472

WILLIAM PLUMMER vs. CLAUDIUS B. WHEELER.

A., against whom a Justice had given judgment in favor of B., prayed an appeal to the Superior Court, but the Justice being of opinion that an appeal would not lie to that Court, entered the appeal to the County Court; afterwards, at the instance of B., and without the knowledge of A., he changed the entry so as to make the appeal returnable to the Superior Court, and returned the proceedings accordingly. In the Superior Court, the appeal was dismissed, and afterwards, on the application of A. for a recor-dari to bring up the case to that Court; — it was held, that A. had, under the Act of 1850, ch. 1, a right to an appeal to either Court — that the Superior Court ought not to have dismissed it, and that A. was entitled to the writ notwithstanding the judgment of dismission.

(The case of Bond v. McNider 3 Ire. 440, cited and approved.)

The defendant had obtained a writ of recordari to have brought up to the Superior Court of Rowan the record of a warrant and judgment against him, rendered by a Justice of the Peace ; and this was an application by him, on the return of the writ, at Fall Term, 1852, of said Court, to have the cause placed upon the docket.

It appeared that the plaintiff obtained a judgment before a Justice of the Peace against the defendant, who prayed an appeal to the Superior Court. The J ustice who gave the judgment, thinking the defendant could not, by law, appeal to the Superior Court, endorsed upon the papers an appeal to the County Court. This endorsement was afterwards altered by the magistrate at the instance of the defendant, and in the absence of the plaintiff, and the appeal entered to the Superior Court. The papers were thereupon returned to the Superior Court, and on motion of the plaintiff, the appeal was there dismissed. The writ of recordari was then obtained.

His Honor, Judge Ellis, before whom the motion was made, ordered the cause to be transferred to the trial docket j from which order the plaintiff appealed to the Supreme Court.

Oraige, for the plaintiff.

Boyden, for the defendant.

Battle, J.

Tbe statute of 1850, ch. 1, enacts that “if either of the parties to a trial before a Justice of the peace shall be dissatisfied with the judgment given thereon, bemay appeal, either to the next term of the Court of Pleas and (Quarter Sessions of his county, or to the next term of the Superior Court, at the option of the party : provided, sufficient security be given, as now prescribed by law.” The plaintiff in the recordari had, by virtue of the statute, an undoubted right to appeal to the Superior Court of Law from tbe judgment given against him by the Justice on the 16th of August, 1851. Of this right the Justice had no authority to deprive him ; but he did, under a mistake of the law, attempt to deprive him of it, by entering upon the judgment an appeal to the County Court. Whether, upon discovering his mistake, the Justice had the power, in the absence and without the consent of the other party, to change the direction of the appeal, by striking out the word “ County,” and inserting the word “ Superior,” so as to carry the appeal to the latter Court, it is unnecessary to decide. The act of the Justice, certainly, we think, vacated the appeal to the County Court; because, after the word “ County” was erased, there was nothing in the papers to show that the County Court could entertain it • and had tbe magistrate returned it there, tbe County Court would have been compelled to dismiss it. After the erasure, the appeal was either properly to the Superior Court, or it was made void by the act of the magistrate. If it were properly to the Superior Court, then that Court ought not to have dismissed it; but, having dohe so, the appellant was entitled to the writ of recordari, as the only remedy then open to him ; and in such case, it is not pretended, as indeed it could not be, that the judgment of dismission would be a bar to this remedy. Bond v. McNider, 3 Ire. Rep. 440. If the act of the Justice in erasing the word “ County,” and inserting “ Superior,” vacated the appeal altogether, it proceeded from a mistake of that officer, and could not prejudice the appellant ; for, though done at his instance, he certainly did not intend to withdraw, or in any way deprive himself of his appeal. In such case, we think, he would also be entitled to the benefit of a writ of recordari; so that, whether upon the return of the appeal to the Superior Court, that Court rightfully or wrongfully dismissed it, the appellant became entitled to this writ, in order that he might avail himself of the right which the law gave him, of having his cause tried and determined in the Superior Court. There was no error in the order appealed from, arid it must be affirmed.

Per Curiam. Judgment affirmed.