Opinion
(June Term, 1860.)
A rule in the county court for a defendant, in ejectment, to give security for costs on the pain of a judgment against the casual ejector cannot be made returnable to the Superior Court, and carried up with an appeal to that court by the plaintiff, who submitted to a nonsuit, and it was Held to be error in the Superior Court to give judgment enforcing such a rule.
EJECTMENT, tried before Dick, J., at Spring Term, 1860, of PERQUIMANS.
Johnson for plaintiff.
Jordan for defendant.
A declaration in ejectment, on the demise of Joseph Granbery, was served on the defendant, returnable to the county court of Perquimans, and at February Term, 1859, he entered into the common rule and pleaded "General issue, License, and Liberum Tenementum." (423) At August Term, 1859, the plaintiff took a nonsuit, and at the same term a rule was made for the defendant to give surety for the costs on or before the first day of the Superior Court next ensuing, or allow a judgment against the casual ejector. At the same term the plaintiff took an appeal from the judgment of nonsuit to the Superior Court. On Friday of the Superior Court, no surety having been given, the court ordered a judgment to be entered against the casual ejector, from which the defendant appealed to this Court.
We think it clear that after a person, served with a copy of the declaration in ejectment and notice, has been made the defendant by entering into the common rule and pleading not guilty, he may be required to give bond for the cost, under a rule that unless he does so his appearance will be stricken out and judgment be entered against the casual ejector, as the failure of the plaintiff to insist upon the bond in the first instance is not an absolute waiver of his right to do so afterwards.
But his Honor erred in attempting to give effect to the rule which had been previously made in the county court.
If, as appears in the face of the record, the rule was made after the plaintiff had submitted to a nonsuit, it was of no force, because there was no case in court, and nothing to act on. If the rule was made before the nonsuit, then it was superseded thereby, for although while the rule was pending the plaintiff was at liberty to discontinue his suit, yet he was not in a condition to submit to a nonsuit and appeal, as from a judgment with which he was dissatisfied, which supposes that the case is in a condition to be tried, and the plaintiff submits to a nonsuit in deference to the opinion of the court, and the case cannot be in a condition to be tried while the rule is pending; or if the nonsuit and the rule and the appeal be considered as concurrent acts, the rule was of no force, because the county court had no authority to make a rule which is to be enforced in the Superior Court. There is no precedent for such (424) a proceeding. Every court must make rules with reference to its own action. So the county court cannot make a rule in anticipation that the case is to be taken out of that court and carried to another, upon which the duty of enforcing the rule shall be thereby imposed.
PER CURIAM. Reversed.