Opinion
(June Term, 1845.)
Where upon the trial of a warrant before a justice for a bond of $10 he entered as his judgment. "Warrant dismissed and judgment for the officer for $1," and it was proved on the trial of a subsequent suit for the same bond that the merits of the case were examined by the justice who tried the first warrant: Held, that this would be a bar to the subsequent suit, unless the plaintiff could clearly show that the justice only intended to enter a nonsuit.
APPEAL from ROCKINGHAM, Spring Term, 1845; Caldwell, J.
Kerr for plaintiff.
Morehead for defendant.
Debt on a bond for $10, commenced before a justice of the peace, and brought by successive appeals to the Superior Court. The execution of the bond being proved, the defendant introduced and relied on a former judgment on a warrant for the same cause of action, which judgment was in the following words, to wit: "Warrant dismissed and judgment for the officer for one dollar. 30 April, 1844. Rob. M. Napier, J. P." To show that the merits had been examined, the defendant examined Napier, the justice, who testified that, on the return of the warrant before him the plaintiff and the defendant both attended, and that several witnesses were examined for the plaintiff as to the handwriting, some of them from the neighborhood of the parties, and one of them a brother of the defendant, some of (558) whom testified that they could not say that the signature was the handwriting of the defendant, that they did not know it.
The court was of opinion, from the showing of the judgment, that it was a nonsuit, and that the evidence did not repel this conclusion. There was a verdict for the plaintiff, and judgment being rendered accordingly, the defendant appealed.
We regret the necessity, in which we are placed, of granting a new trial. The sum demanded is very small, and no important principle of law is involved in the controversy. We think his Honor erred in the construction which he placed on the judgment by the magistrate on the former trial, and, of course, it is our duty to sent the case back for a new trial. To the present action the defendant pleaded a former judgment between the same parties, upon the same subject-matter, and, in support of his plea, introduced a warrant in the name of the plaintiff upon this same bond. The magistrate who tried the case endorsed upon it, "warrant dismissed and judgment for the officer for one dollar." In order to show that the magistrate who tried the first warrant passed upon the bond now in controversy, the defendant produced the magistrate, who testified that on the return of the warrant, the plaintiff and defendant both attended, that several witnesses were examined by the plaintiff as to the handwriting of the defendant, some of them the neighbors and one the brother of the defendant, some of whom testified that they could not say the signature was the handwriting of the defendant, that they did not know it. His Honor was of opinion that the entries upon the back of the warrant did not amount to a judgment, but to a nonsuit, and that the parol evidence did not alter its effect. In this opinion we think there was error. The evidence shows that the only (559) matter in controversy between the parties was as to the execution of the bond; several witnesses were produced by the plaintiff to this point, none of whom established the fact — and, with this entire failure of evidence, the magistrate dismissed the warrant. The inference is irresistible, in the absence of contradictory or explanatory evidence, that the justice dismissed the warrant because he considered the plaintiff had failed to prove the bond. Not only, then, was there a judgment given against the plaintiff, but upon the very point in issue in this case, to wit, the validity of the bond declared on. It has not been the course of the Court to look too narrowly into the form in which justices of the peace do their official business, and it has now become a settled principle that the courts will be satisfied if enough appears to show what was done or intended to be done. In Ferrill v. Underwood, 13 N.C. 114, the Court decided that an entry by a magistrate, upon the trial of warrant, "In this case the plaintiff to pay costs," was equivocal; it might be a judgment of nonsuit or on the merits, but, as there was evidence to show that the magistrate had gone into the merits of the case, it was a judgment which protected the defendant upon the trial of another warrant for the same subject matter. Justice v. Justice, 25 N.C. 58, affirms the doctrine in the case above. In Justice v. Justice, the entry on the warrant was, "judgment against plaintiff for costs," and the Court say the judgment might well stand for a nonsuit or a judgment on the merits, and as there was no competent testimony to show that the merits had been gone into, it was considered a judgment of nonsuit. Here the entry made by the justice implies a judgment according to the practice of the justices of this State, and we think it was sufficiently shown that the merits were gone into. The plaintiff might have shown it, perhaps, a judgment of nonsuit, if he had chosen so to do. The evidence of the debt was his property, and, upon finding his witness could not prove its execution, he may have withdrawn it, and thereupon the magistrate may have endorsed it on the papers as a nonsuit. Upon the next trial the parties may show whether the plaintiff retained possession of the paper or the magistrate has (560) kept it.
PER CURIAM. Venire de novo.
Cited: Davie v. Davis, 108 N.C. 502.