Johnson v. Murchison

Full title: JOHNSON BOWLES v. ALEXANDER MURCHISON

Court: Supreme Court of North Carolina

Date published: Jun 1, 1863

60 N.C. 83 (N.C. 1863)

Opinion

(June Term, 1863.)

1. Where a rule was obtained against a plaintiff in the county court to give his cause of action by a given day at the next term, it was held to be regular for the plaintiff to submit a nonsuit before the day assigned at the next term and take an appeal to the Superior Court.

2. A nonsuit may be entered before the defendant's appearance or before pleading, or at any day of continuance in the cause.

3. Where an appeal stood on the docket of the Superior Court for three terms, and at the fourth the appellee moved to dismiss it for irregularity, it was held that all such objections were considered as waived by the delay and acquiescence.

4. It is not ground to dismiss an appeal in the Superior Court that the county court failed to enforce a rule made by itself, incidentally, in the progress of a cause.

(84) This was a motion before Bailey, J., to dismiss an appeal at Fall Term, 1862, of MOORE.

The facts of the case are fully stated in the opinion of the Court.

Neill McKay and McDonald for plaintiffs.

Buxton, Haughton, and Strange for defendant.

BATTLE, J.

This was an action of debt upon a bond, brought to the court of pleas and quarter session for the county of Moore. Upon the appearance of the defendant at January Term, 1859, he craved oyer of the bond, and the suit was continued in this condition until July Term, 1860, when the defendant obtained a rule upon the plaintiff to give the oyer demanded of him "on or before Thursday on the next term of the court, or this cause will stand dismissed." At the next term the following entry appears on the record : "Judgment of nonsuit in this case on Wednesday of this term, from which an appeal is prayed and granted to the Superior Court." In that court the cause was put upon the trial docket at Spring Term, 1861, with the entry, "Oyer craved before pleading." In this condition the cause was continued from term to term, until Fall Term, 1862, when the record shows that oyer was had. At the same term it appears that the following judgment was rendered: "Motion by the defendant's counsel to dismiss the appeal, on the ground that the plaintiff had no right to take a nonsuit after the rule was granted at July Term, 1860, of the county court. Motion sustained, and appeal dismissed by the court." From the judgment an appeal was taken to the Supreme Court.

The Superior Court erred in dismissing the appeal to it from the county court. This error proceeded from a misapprehension of the nature of nonsuit. We suppose this may have been so, because the counsel of the defendant contends here that the plaintiffs had no right to take a nonsuit in the county court before they gave oyer of the bond upon which the suit was brought. Plaintiffs cannot, properly, be said to take a nonsuit at all. It is a judgment rendered against them, when they are demandable, for not appearing upon the demand (85) for them. Thus in 5 Com. Dig., 548, it is said that "If the plaintiff does not appear at the day when he is demandable, he shall be said to be nonsuited quia non est prosequt, etc. Co. Lit., 138 b. And this may be before the defendant's appearance, or at the return of the writ." Ibid. "So at the return of an assize, if the plaintiff is not ready to make plaint on the demand of the tenant, he shall be nonsuited. Salk., 82. Or a plaintiff may be nonsuited after an appearance as at any day of continuance, for the plaintiff is then demandable and is the first agent. Co. Lit., 138 b." These extracts, taken from the highest authority known to the law on the subject of pleading, show that the judgment was reached on Wednesday of the October term of the county court, the rendered against them necessarily imports that they were demanded by the defendant, and, upon their not appearing, the judgment against them was given. From this judgment they, of course, had a right to, appeal, under the provisions of the Revised Code, ch. 4, sec. 1.

But, supposing there had been some irregularity in the judgment of the county court, we should hold that the defendant had, by his delay, waived his right to move to dismiss the appeal from the Superior Court. The latter court certainly had no right to dismiss the appeal because the rule in the county court had not been complied with. Every court must enforce its own rules, made, incidentally, in the progress of a cause; upon an appeal, the higher court cannot notice such rules, which have been made in the inferior tribunal.

PER CURIAM. Reversed,

Cited: Bank v. Stewart, 93 N.C. 403.

(86)