Birdsey v. . Harris

68 N.C. 92

• Court: Supreme Court of North Carolina
• Decided: January 5, 1873
• Status: Published

Opinion

Settle, J.

The plaintiff’s counsel, Mr. L. W. Barringer insisted upon the argument that the record disclosed several defects, any one of which was fatal to the defendant’s case in this Court.

Without pausing to consider his other objections, the authorities cited to sustain the last are so directly in point as to enable us to dispose of the case in a few words.

The foundation of these proceedings is a judgment of a Justice of the Peace of New Planover county, docketed first in the office of the Superior Court Clerk of that county, and then regularly transmitted to, and docketed in the office of the Superior Court Clerk of Wilson county.

New Hanover is in the 4th and Wilson is in the 3d district. So the Judge of the 3d district, upon motion, undertook to set aside a judgment originally docketed in the 4th district, and ordered “ the cause to be transmitted to the Clerk of the Superior Court of New Hanover county, to be •submitted upon issues to a jury and to be placed upon the docket of said court, to'be tried in the due course and order *,'Of the said court, or to abide the orders of the Judge of the ■4th Judicial district.”

The Judge of the 4th district,in which the original judgment was rendered, could not have made this order, and certainly the Judge of another district cannot do so.

In Ledbetter v. Osborne, 66 N. C. Rep. 379, it is held, that where a judgment was obtained before a Justice of the Peace, and docketed in the office of the Superior Court Clerk, the Court has no power upon motion, to set aside said judgment ,and enter the cause upon the civil issue docket. If a party has been aggrieved in a trial before a Justice of the Peace, .and has been denied the right of appeal, he may obtain relief by a writ of recordari.

But waiving all difficulties which may be suggested as to a Justice’s judgment, and assuming, for the argument, that the judgment was originally rendered in the Superior Court; still the defendant has mistaken the county in which he should have sought relief.

In Hutchinson v. Symons, 67 N. C. Rep. 161, Chief Justice Pearson reviews all the cases upon the subject, and shows conclusively that a case cannot be constituted in two or more counties, at the same time, in either of which motions may be made, as on a case pending. The case remains of record in the court of the county in which the original judgment was rendered, and all motions in the cause must be made in that court; and it is pending until the judgment is satified in the county where it is rendered.

Let it be certified that there is error, to the end, &c.

Per Curiam.

Judgment reversed.