Morehead v. Atlantic & North Carolina Rail Road, 52 N.C. 500, 7 Jones 500 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 500, 7 Jones 500

JOHN M. MOREHEAD v. THE ATLANTIC AND NORTH CAROLINA RAIL ROAD COMPANY^*

A corporation may be sued in the county court, in any county in tbe State,, where the plaintiff resides.

Where the defendant, in a county court, pleaded in abatement to the jurisdiction of the court to which the plaintiff demurred, and the court overruled the demurrer and sustained the plea, on an appeal to the Superior Court, where the judgment below was properly reversed and the jurisdiction of the County Court sustained, it was Held that was error to order a procedendo to the County Court, for that, the whole case was brought up to the Superior Court.

Action ok assumpsit, tried before Bailey, J., at tbe last Spring Term of Guilford Superior Court.

Tbe writ, in this case, was returnable to the court of pleas and quarter sessions of Guilford county, and served on one of the directors of the railroad. At the return term, the defendant, by its attorney, pleaded that John D. Whitford (and others, mentioning them,) “ were, during all the time aforesaid, and now are, the directors of the said Atlantic and North Carolina Bailroad Company, and that John D. ’W’hitford was president of the road,” and the plea sets out the residences of these several individuals, which were all beyond the limits of Guilford county, and prays judgment, whether the Court will take further cognizance of the action.

To this plea, the plaintiff demurred, and there being a joinder in demurrer, tbe County Court, on argument, over-rnled the demurrer and sustained the plea, and gave judgment that the action be abated, from which the plaintiff appealed to the Superior Court.

In the Superior Court the judgment was, that the plea is insufficient and the demurrer was sustained, and that the defendant answer over, and that a writ of prooedmido issue to the County Court for that purpose ; from this judgment the defendant appealed to this Court.

Morehead and Badger, for the plaintiff. -

MoLecm and B. F. Moore, for the defendant.

* Judge Manly being a stockholder, did not sit on this case.

Pearson, C. J.

A corporation has no actual residence, •and no residence, in contemplation of law, is given to the defendant by statute. The allegation of the residence of the president and other officers, set out in the plea, is immaterial, and has no bearing on the question of jurisdiction. Eor the officers are not parties to the action, and the reference made to them in the statute, is merely for the sake of providing a mode for the service of process, and does not affect the question of venue. It follows that the suit was properly instituted in the county where the plaintiff resides, and that the court of pleas and quarter sessions of that county had jurisdiction. There is, consequently, no error in so much of the judgment of the Superior Court as sustains the demurrer, and requires the defendant to answer over.

But this Court is of opinion there is error in that part of the judgment which directs a writ of jproeedendo to issue to the county court.

It is settled that where the judgment of the county court is final, so as to put an end to the case, so far as that court is concerned, under our statutory provisions in regard to appeals from the county to the superior courts, the appeal brings up the case and so constitutes it in the superior court, that all further proceedings are to be had in that court; Shaffer v. Fogleman, Busb. Rep. 280; Russell v. Saunders, 3 Jones’ Rep. 432 ; for, as the case is out of the county court, no legitimate purpose can be answered by sending it back; inasmuch as, after a trial there, either party would again have the right of appeal; by which the ease would be brought back to the •superior court, where there would be a trial de novo, treating the -whole proceeding in the county court as vacated by the •appeal, which circfuity would, of course, be attended with ■delay and useless expense.

It was said, on the argument, as the county court erred in refusing to take jurisdiction, the proper way to correct the error is to send the case back; for, unless- that be done, the plaintiff will be deprived of the fruits of his appeal, and the position was assumed that a case should always be sent back where it was not tried on its merits in the county court.— "We think the proposition is laid down too broadly. By entertaining the suit in the superior court, the error of the county court is corrected, and the plaintiff has the fruits of his appeal by having a suit commenced on the day the writ issued, and by having the case treated as if it had been instituted in the county court, and lie is put in the same plight and condition as if there had been a trial in that court oil the merits, and an appeal to the superior court. Suppose any other plea in abatement — one for a misnomer, for instance,, had been sustained, or suppose on the trial of the general' issue, a witness for the plaintiff had been rejected and thereupon he had submitted to a nonsuit and appealed, he could, with the like reason, insist that the only proper way to correct the error is to send the ease back; and it could, with equal propriety, be asked cm l)ono f why incur the unnecessary delay and expense,, as a second appeal will vacate all that is done ?

Per Curiam,,

Judgment reversed.