Opinion
(June Term, 1830.)
1. After a verdict in a cause commenced in the County Court, of which a single magistrate had jurisdiction, judgment of nonsuit cannot be entered, as is provided by the act of 1777 (Rev., ch. 115, sec. 10), respecting suits commenced in the Superior Courts.
2. Under the acts of 1804 and 1820 (Rev., chs. 650 and 1045), the only mode of taking advantage of the want of jurisdiction is by plea.
3. Under the act of 1777 the Court will not order non-suit, unless on motion of the defendant.
The plaintiff sued out his writ in assumpsit for goods sold and delivered to the defendant 16 May, 1828, returnable to the County Court. The amount of the plaintiff's claim was originally $114.85; but on the day the writ issued the defendant rendered an account against (297) the plaintiff for $85.70, which the plaintiff instantly passed to the credit of the defendant. The case was tried in the Court below, before NORWWOD, [NORWOOD] J., upon the general issue, and the plaintiff obtained a verdict for $26.95. After the verdict the defendant obtained a rule to show cause why a new trial should not be had. Upon the discharge of which, he appealed to this Court.
Winston, for the defendant.
Nash, contra.
FROM ORANGE.
This suit was commenced in the County Court, and brought by appeal to the Superior Court. Upon the question of juristion [jurisdiction] it is to be treated in the latter Courts as if still pending in the Court below. By Laws 1804 (Rev., ch. 650) and of 1820 (Ib., ch. 1045), suits brought in any Court for sums less than therein mentioned are to be abated on the plea of the defendant. A plea is, therefore, the only method of taking advantage of the want of jurisdiction. We do not find any statute giving the power of nonsuiting the plaintiff if he recover less than a particular sum, as is provided respecting the Superior Courts by the act of 1777 (Rev., ch. 115, sec. 10). But if this were in the Superior Court the plaintiff would still be entitled to judgment. For the Court does not, ex officio, order a nonsuit. It acts only on the defendant's motion to that effect; for it may be that the defendant would prefer the bar to a verdict for a certain sum to letting the plaintiff at large again; and the provision is not to be construed in favor of the plaintiff, but the defendant only. And if there be such a motion the plaintiff is permitted to avoid its operation by his affidavit that more was really due.
Here no motion is made for a nonsuit, but only a for a new trial. We see no ground for saying there ought to be a new trial; for it does not appear that the plaintiff recovered more than in law and justice (298) was due him. Had there been a specific motion for a nonsuit the plaintiff, by his affidavit, might have explained the true time of entering the credit on his account, and showed that it was after suit brought, or the Court might, from the Judge's notes, have modified the verdict so as to give the defendant the advantage of his account by way of set-off instead of payment. We cannot tell how the facts might have been made to appear. There was no motion for a nonsuit, and there is ground for a new trial.
PER CURIAM. No Error.
Cited: Kingsbury v. Hughes, 61 N.C. 331; Brown v. King, 107 N.C. 316.