Hinton v. . Deans

Supreme Court of North Carolina

Hinton v. . Deans

75 N.C. 18

CourtSupreme Court of North Carolina

DecidedJune 5, 1876

StatusPublished

Cited by9 cases

This text of 75 N.C. 18 (Hinton v. . Deans) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hinton v. . Deans, 75 N.C. 18 (N.C. 1876).

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Opinion

EodmaN, J.

In this Court the following exceptions were •taken to the judgment below :

I. That inasmuch as the Justice’s judgment was for less than $25, it could not.be tried de novo in the Superior Court. Jtet. Rev., chap. 63, sec. 59, taken from C. C. P., sec. 539. It is very clear that the provision’ requiring appeals -from judgments for $25 or less to be tried only on matters of law appearing on the papers, does not apply to a case where a plaintiff brings suit for more than $25, and recovers that sum or less, or has judgment against him and appeals. It applies only to cases in which the demand controverted is $25 or less. This w-as decided -in Cowles v. Haynes, 69 N. C. Rep., 128.

*20 II. The defendant moved in the Superior Court to be allowed to plead .the Statute of Limitations, which the Judge refused. Section 508 of C, C. E. prescribes the rules of proceedings in a Justice’s Court. The pleadings may be oral and informal, but the defendant must of necessity state his-defence. Rule IX. says the pleadings may be amended-“'upon appeal when by such amendment substantial justice will be promoted.” By section 589", if the judgment exceed $25, exclusive of costs, (which is explained, above,) there shall be on the appeal- “a new trial of the whole matter”'' in the Superior Court. This means only a new trial of the-matters in issue before the Justice.

The amendments spoken of in rule IX. are to be made before the Justice. The power and duty of the Judge in-respect to amendments after the appeal has reached his-Court, depend on sections 131, &c., of. C. C. B.,. and there is-nothing in those sections requiring the Judge to allow a new-plea to be put in, though he may do so on payment of all costs uip to that time. The Code is liberal in allowing, amendments, but the adding of a new plea stands on different ground» from the amending of a- formal or even a. substantial defect in a plea which does not introduce a-substantially new defence. We think the plea of the statute was not a matter of right in the defendant, but was in the discretion of the Judge, who might allow it on such terms-as seemed-just,- or refuse it altogether.

Per Curiam. Judgment affirmed.

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EodmaN, J.

In this Court the following exceptions were •taken to the judgment below :

I. That inasmuch as the Justice’s judgment was for less than $25, it could not.be tried de novo in the Superior Court. Jtet. Rev., chap. 63, sec. 59, taken from C. C. P., sec. 539. It is very clear that the provision’ requiring appeals -from judgments for $25 or less to be tried only on matters of law appearing on the papers, does not apply to a case where a plaintiff brings suit for more than $25, and recovers that sum or less, or has judgment against him and appeals. It applies only to cases in which the demand controverted is $25 or less. This w-as decided -in Cowles v. Haynes, 69 N. C. Rep., 128.

*20 II. The defendant moved in the Superior Court to be allowed to plead .the Statute of Limitations, which the Judge refused. Section 508 of C, C. E. prescribes the rules of proceedings in a Justice’s Court. The pleadings may be oral and informal, but the defendant must of necessity state his-defence. Rule IX. says the pleadings may be amended-“'upon appeal when by such amendment substantial justice will be promoted.” By section 589", if the judgment exceed $25, exclusive of costs, (which is explained, above,) there shall be on the appeal- “a new trial of the whole matter”'' in the Superior Court. This means only a new trial of the-matters in issue before the Justice.

The amendments spoken of in rule IX. are to be made before the Justice. The power and duty of the Judge in-respect to amendments after the appeal has reached his-Court, depend on sections 131, &c., of. C. C. B.,. and there is-nothing in those sections requiring the Judge to allow a new-plea to be put in, though he may do so on payment of all costs uip to that time. The Code is liberal in allowing, amendments, but the adding of a new plea stands on different ground» from the amending of a- formal or even a. substantial defect in a plea which does not introduce a-substantially new defence. We think the plea of the statute was not a matter of right in the defendant, but was in the discretion of the Judge, who might allow it on such terms-as seemed-just,- or refuse it altogether.

Per Curiam. Judgment affirmed.

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75 N.C. 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hinton-v-deans-nc-1876.

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