Opinion
(December Term, 1843.)
1. The court cannot dismiss a suit, unless the act passed in 1826, Rev. Stat., ch. 31, sec. 41, unless it appears from the writ and declaration that the sum demanded is less than $100. The verdict of a jury finding a less sum does not bring the case within that section of the act.
2. Where there is an issued joined in the county court, a verdict of a jury, and before their verdict is entered a motion to dismiss the suit, which is allowed by the court, and the plaintiff appeals to the Superior Court, there must be a trial in the Superior Court of the issues de novo. That court cannot render a judgment upon the verdict in the county court.
APPEAL from Manly, J., at special term in December, 1843, of CUMBERLAND.
Warren Winslow for plaintiff.
D. Reed for defendant.
This was an action of debt brought in the county court on a (162) bond for $300, in which the defendant pleaded payment and setoff. The jury found sundry payments, and that the balance due the plaintiff was $60.88. Before the verdict was entered, the defendant moved the court to dismiss the suit, and after having the verdict recorded the court allowed the motion. The plaintiff appealed to the Superior Court, and then the defendant renewed his motion to dismiss, but the court refused it. The plaintiff then prayed judgment according to the verdict in the county court, and the court rendered judgment thereon, and the defendant appealed to this Court.
We concur with his Honor in refusing the defendant's motion to dismiss. That is a proceeding not known to the common law, but introduced by the act of 1826, Rev. Stat., ch. 31, sec. 41, which imposes that duty when a suit shall be "commenced for any sum of less value than $100"; that is, as we conceive, when the sum demanded in the action is less than $100. The acts of 1804 and 1820 were no doubt intended to make the jurisdiction of justices thereby conferred exclusive, but they provided that actions brought in courts for less than $60 or $100 should be abated on plea, and it was held that the construction of those acts was that a plea in abatement was the only means of ousting the jurisdiction of the courts, inasmuch as that was the method of the common law and the statutes contained no provision for entering a nonsuit after the sum due was ascertained by a verdict, as in the Superior Courts under the acts of 1777 and 1793. Sheppard v. Briggs, 9 N.C. 369, in 1823. Then there grew up a practice of bringing suits in the county courts on bonds and notes for sums between $60 and 100, upon an understanding among the attorneys not to plead in abatement. (163) It was to remedy that mischief that the act of 1826 was passed, making it the duty of the court to dismiss suits when the want of jurisdiction appears, whether the attorneys will or not. And the question is, to what cases that act applies? We think, both from the words of the statute and from the nature of the subject, that it manifestly applies to actions in which less then $100 is sued for or demanded in the writ and declaration, and not to those in which a large sum is demanded, but a smaller found due by a verdict on pleas in bar. The words are "if any suit shall be commenced for any sum of less value than $100," which would seem to express plainly enough an action brought for less than $100, and not one in which, though brought for more, the recovery was less than $100. But the meaning to be given to the phrase "commenced for" is placed above doubt by the sense in which it is unquestionably used in another statute in pari materia. In the acts of '77 and '93 before alluded to, it is enacted "that no suit shall be originally commenced in the Superior Courts for any debt of less value than, etc.," upon which words the course would be to plead in abatement if a suit were brought for a sum less than those mentioned. But the acts go on to add, "and if any suit shall be commenced contrary to the meaning hereof, or if any shall demand a greater sum than is due, on purpose to evade this act, in either case, the plaintiff shall be nonsuited and pay costs," with a proviso for the plaintiff's showing on affidavit that "the sum for which his suit was brought was really due," though not recovered, and thereby avoiding the nonsuit. Now, it is obvious in those acts that the words "commenced for a sum" and "the sum for which his suit was brought" are used as synonymous; and both are contradistinguished from the others, "if any person shall demand a greater sum than is due," with the intent to evade the act. In the first case, the nonsuit may be entered from inspection of the declaration; in the other, it must appear by verdict that the lesser sum is due that it may appear that the greater sum was demanded in order to evade the act; and when that appears, a nonsuit is entered, non obstante veredicto, by force of the act. But the act of 1826 has not such provision, but only directs the (164) court to dismiss a suit that is commenced or brought for less than $100, leaving the case of a suit brought for more, but in which less is due, to the operation of the common law or the previous statutes, and to be abated on plea. If it had been intended to place this case on the same footing with that of suits in the Superior Courts it would have been easy to have adopted the provisions of the acts of "77 and '93. As that was not done, there is no method of proceeding but by plea in abatement. By what means can the court ascertain for itself that the whole sum demanded is not due? The Legislature could not mean that, upon motion and affidavits, the court should undertake to determine the whole merits of the suit, and thus supersede the trial by jury; nor can the court, without the express mandate of a statute, refuse to receive a verdict because it finds more or less to be due, or, after receiving and recording it, nonsuit the plaintiff, or, in the language of this act, dismiss his suit. To render the act of 1826 effectual to such an end, an amendment conferring that power on the court is indispensable.
But we are of opinion that it was erroneous to give the plaintiff judgment in the Superior Court on the verdict in the county court. The plaintiff might have carried her case into the Superior Court by writ of error, and then she would have been entitled to judgment in the Superior Court if, upon the record, she ought to have had it in the county court, because in that proceeding only the matter of law upon the record is to be determined. But upon appeal it is otherwise, for the act, 1777, ch. 115, sec. 77 (Rev. Stat., ch. 31, sec. 122), is express "that in all appeals from the county to the Superior Court, if the trial in the county court was of an issue to the county, a trial de novo shall be had." The appeal vacates the judgment rendered, and the verdict also, and the course is to proceed as if there had been no trial. If language so explicit could require the aid of construction, it has long received it in Snowden v. Humphries, 2 N.C. 21. Suppose a special verdict in the county court, and judgment and appeal; it would stand no higher than a general verdict, although the appellant might have urged in the county court that, upon the verdict as it was, he was entitled to (165) judgment. In the Superior Court either party is at liberty to show the facts to be otherwise than found in the verdict below. Of course, this is different from, decisions in petitions, or on demurrer or awards, or the like, in which there was not a trial of an issue, but a different mode decision. For this reason, the judgment of the Superior Court must be reversed and the cause remanded with directions to proceed to try the issues joined between the parties, and otherwise act according to right and justice.
PER CURIAM. Reversed and remanded.
Cited: Newman v. Tabor, 27 N.C. 232; Birch v. Howell, 30 N.C. 470; Parham v. Hardin, 33 N.C. 220; Bean v. Baxter, 47 N.C. 357; Patton v. Shipman, 81 N.C. 349; Blackwell v. Dibbrell, 103 N.C. 273; Hicks v. Beam, 112 N.C. 644.