Opinion
July Term, 1827.
From Robeson.
1. Where a justice forgets to return an appeal at the next term after the judgment, it is proper, upon notice to the appellee, to return it and place the case on the trial docket at a subsequent term.
2. An appeal from a justice, granted on security given two days after the judgment, will not be dismissed, although allowed without affidavits, and although no entry appears that, at the trial, time was given to the plaintiff to find sureties.
By the act of 1777, ch. 15, commonly called "the court law," at section 63, it is provided that either party dissatisfied with the judgment of a justice of the peace may appeal to the next county court, first giving security for prosecuting his appeal with effect; and by an act passed in 1794 (Rev., ch. 414) the same provision is reenacted. By the third section of an act to amend the latter, passed in 1802 (Rev., ch. 609), it is enacted that whenever it shall happen that judgment is entered against either plaintiff or defendant, "he, she, or they not being present," that at any time within ten days after the judgment the person or persons against whom such judgment was given, on making oath before any justice, etc., "that he, she, or they was or were prevented from attending on the day of trial, by bodily infirmity, mistaking the day of trial, or other sufficient reason," may have an appeal to the next county court, etc., and it is made the duty of the justice granting the appeal to issue a written order to the constable, etc., having the judgment in his hands, to return the same to him, and to give notice to the opposite party in the cause of such appeal being granted; and on receiving such judgment it is made the duty of the justice to make return thereof, together with the "affidavit of the party craving the appeal," to the next court, etc. And by the first section of an act passed in 1812 (Rev., ch. 832) it is (177) enacted when a judgment is given by a justice against any person who wishes to appeal, etc., and is unprovided with securities upon the day of trial, such justice may grant ten days to give security for the appeal, and "shall make an entry thereof upon the warrant."
At March Term, 1826, of the Superior Court of Robeson (in which county the Superior Court has jurisdiction of appeals from justice's judgments) one of the justices of the peace returned a warrant, judgment, etc., between the plaintiff and the defendant. The judgment which was indorsed on the warrant was for costs against the plaintiff, and was rendered 27 July, 1825, and the only other entry appearing on the warrant was signed by the justice, and was in these words: "The plaintiff appeared and craves an appeal to prosecute suit according to law by giving Archibald Currie security. This being granted to him 29 July, 1825." At the same term at which these proceedings were returned the plaintiff made a written affidavit that the justice had promised him to return the appeal at September Term, 1825 (being the next term after the judgment), but the justice, who attended as a junior at that term, and resided at the distance of 28 miles from the courthouse, alleged to the plaintiff, who attended on the last day of the term with a view of prosecuting the appeal, that he had forgotten to bring it up. Upon this affidavit the plaintiff moved for and obtained an order that notice should issue to the defendant to appear at next term and defend the suit, when before his Honor, Judge Donnell, the defendant appeared and moved to dismiss the appeal because, if the plaintiff was present on the trial, it did not appear on the proceedings that he then signified his wish to appeal, or that time was then given to find sureties according to the act of 1812, and because if the plaintiff was absent, no affidavit was taken to account for his absence as directed (178) by the act of 1802. The plaintiff offered to prove by a witness that he did pray an appeal on the day of trial, and obtained time to give sureties; but the judge refused to hear parol evidence thereof, and dismissed the appeal, from which judgment the plaintiff appealed to this Court.
It was not the fault of the plaintiff that the appeal was not returned to the court to which it was returnable. At that court the justice whose duty it was to return it attended as a juror; he lived 28 miles from court, and that was probably the reason why he could not then return it, having forgot to carry it with him when he first went to court. The defendant was notified of the motion that would be made to enter the appeal on the trial docket, and is now party to the proceedings. There is no hardship on the defendant in granting a new trial, but in refusing it an injury may be done the plaintiff. I therefore think the ends of justice will be better answered by setting aside the dismission of the appeal and granting a new trial, and that the rule granted for that purpose should be made absolute.
PER CURIAM. Judgment reversed and rule absolute for placing the cause on the trial docket.