It is needless to inquire whether the promise made by the defendant to the plaintiff to pay him the McMillan debt was void under the statute of frauds, for that promise having been the subject of the action upon which the judgment before the justice, dated February 17th, 1877, in favor of the defendant, was founded, it was merged in that judgment, and no longer subsists, unless that judgment has been reversed.
*204The plaintiff insists that this action now under consideration is brought to rehear that judgment, and if in the opinion of this court it ought to be reheard, then the question whether the promise was void under the statute of frauds will be material. But our opinion is, that the ruling of His Honor upon the fourth issue was erroneous.
The “case” shows that both parties were present upon the trial before the justice when the judgment of the 17th of February, 1877, was rendered, and no appeal was taken. The judgment, then, was final, and the justice had no right or power to order a rehearing or grant a new trial.
Tute Code, §865, declares that, “a new trial is not allowed in a justice’s court in any case whatever;'but either party dissatisfied with the judgment in such court, may appeal therefrom to the superior court, as hereinafter prescribed.”
But The Code also provides that, “when a judgment has been rendered by a justice, in the absence of either party, and when such absence was caused by the sickness, excusable mistake or neglect of the party, such absent party, his agent or attorney, may, within ten days after the date of such judgment, apply for relief to the justice who awarded the same, by affidavit, setting forth the facts, which affidavit must bo filed by the justice.” This section has received a construction by this court in the case of Froneburger v. Lee, 66 N. C., 333, where it was held that, “when both parties to an action are present at a trial in a justice’s court, and the cause is heard, and judgment rendered, a new trial cannot be allowed. The party dissatisfied with the judgment can have a remedy only by appeal to the superior court.” The Code, §845, C. C. P., §508.
Iu this ease, both parties were present at the trial before the justice, the cause was heard and judgment rendered, and no appeal taken; the judgment was therefore final and conclusive. This action, therefore, which was brought to rehear that case, cannot be maintained, and judgment must be rendered here that the defendant go without day, and that the plaintiff pay the costs.
Error. Reversed.