Buchanan v. McKenzie, 53 N.C. 91, 8 Jones 91 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 91, 8 Jones 91

WILLIAM BUCHANAN et al, (plaintiffs in error,) v. B. B. McKENZIE, (defendant in error.)

The fact that a county court, by a special statute, cannot hold jury trials, does-not deprive a party of his common law right, to have issues of fact tried, by a jury.

Where on a writ of error, a judgment of the county court, refusing to let a party plead, was reversed in the superior court for error, the proper course, was, to send the case back to the county court, that the plaintiff, in error,, might be restored to all things which he had lost, and it was Held to be-error for the Judge to give leave to the party to enter his pleas in the Su~ perior Court.

Writ or error, coram nobis, before Saunders, J., at a Spe- - cial Term, June, I860, of Richmond Superior Court.

The plaintiffs, in error, were the sheriff of that county andr his sureties. They were summoned at the instance of the-county trustee, by written notice, to appear at a term of the county court, to show cause why judgment should not be entered against them, on motion, for the county taxes,-collected by the said sheriff for the year, covered by their bond. At the term aforesaid, the defendants, (plaintiffs in error,) appeared by -their counsel, and objected to a summary judgment, for that, they had a right to enter pleas and have them submitted to a jury. It appearing, that, by a special Act of Assembly, applicable to Richmond county, no jury trials could be had in the county of Richmond ; the Court over-ruled the defendants objection, and gave judgment for the plaintiff, (defendant in error.) This was the matter assigned, on thelhearing of the writ of error, and his Honor held, there was error in the Court below, in this particular — and adjudged that the defendant’s, (plaintiffs in error,) have leave to enter the pleas, “ General issue, payment, &c.,” in that Court. Erom which the plaintiff, (defendant in error,) appealed to this Court.

Leitch, Bowie, McDonald and Blue, for the plaintiffs (in error.)

Strange and B. H. Battle, for the defendant (in error.)

Pearson, C. J.

The plaintiffs, who were defendants in the County Court, there insisted “upon a right to plead, and have a trial by jury, in which the Court over-ruled them, and rendered judgment on the bond.”

We agree with his Honor, in the Court below; there is error in the proceeding of the County Court. The statute authorises judgment to be entered upon motion in a summary mannei’, without a writ or declaration, or other formal pleadings — so as to avoid the delay, incident to ordinary jury trials, but it was not the intention to deprive the defendant in the county court, of his right to put at issue any matter of fact, to wit: the execution of the bond, the amount received by the sheriff, the amount which he may have paid over, and the balance due, and have these matters of fact tried by a jury.

As the County Court, for the county of Richmond, under a statute, applicable to that county, had no power to institute a trial by jury, the proper course was, to have the case transmitted up to the Superior Court, for the trial of issues of fact, and it was manifest error to refuse to allow such issues to»be made. In other words, the fact that the County Court of Richmond cannot hold jury trials, does not deprive a party of his common law right to have issues of fact tried by a jury; Whitley v. Gaylord, 3 Jones, 286.

But we do not concur in the judgment, which his Honor rendered. After reversing the judgment of the County Court, he gives leave for the plaintiffs in error, to- enter their pleas. There is no precedent for this mode of proceeding in a writ of error, and his Honor was misled by treating it as an appeal, which brought up the whole case; such is not the effect of a writ of error; its office is merely to present, for review, errors of law, appearing on the face of the record, to have the judgment reversed, and the party restored to all things which he has lost by occasion of such erroneous judgment, and the proceedings thereon;, Jaques v. Cesar, 2 Saun Rep., 101z (in note.)

There should be judgment to that effect.

Per Curiam,

Judgment reversed.