53 N.C. 91 | N.C. | 1860
The plaintiffs in error were the sheriff of that county and his sureties. They were summoned at the instance of the county trustee, by written notice, to appear at a term of the county court, to show cause why *71 judgment should not be entered against them, on motion, for the (92) county taxes collected by the said sheriff for the year covered by their bond. At the term aforesaid, the defendants (plaintiffs in error) appeared by their counsel and objected to a summary judgment, for that they had a right to enter pleas and have them submitted to jury. It appearing that, by a special act of Assembly applicable to Richmond County, no jury trials could be had in the county of Richmond, the court overruled the defendants' objection, and gave judgment for the plaintiff (defendant in error.) This was the matter assigned on the hearing of the writ of error, and his Honor held there was error in the court below in this particular, and adjudged that the defendants (plaintiffs in error) have leave to enter the pleas "general issue, payment, etc.," in that court. From which the plaintiff (defendant in error) appealed to this Court. The plaintiffs, who were defendants in the county court, there insisted "upon a right to plead and have a trial by jury, in which the court overruled them, and rendered judgment on the bond."
We agree with his Honor in the court below; there is error in the proceeding of the county court. The statute authorizes judgment to be entered upon motion in a summary manner, without a writ or declaration, or other formal pleadings, so as to avoid the delay incident to ordinary jury trials, but it was not the intention to deprive the defendant in the county court of his right to put at issue any matter of fact, to wit, the execution of the bond, the amount received by the sheriff, the amount which he may have paid over, and the balance due, and have these matters of fact tried by a jury.
As the county court for the county of Richmond, under a statute applicable to that county, had no power to institute a trial by jury, the proper course was to have the case transmitted up to (93) the Superior Court for the trial of issues of fact, and it was manifest error to refuse to allow such issues to be made. In other words, the fact that the county court of Richmond cannot hold jury trials does not deprive a party of his common law right to have issues of fact tried by a jury. Whitley v. Gaylord,
But we do not concur in the judgment which his Honor rendered. After reversing the judgment of the county court, he gives leave for the plaintiffs in error to enter their pleas. There is no precedent for this mode of proceeding in a writ of error, and his Honor was misled by treating it as appeal, which brought up the whole case. Such is not *72 the effect of a writ of error; its office is merely to present for review errors of law appearing on the face of the record, to have the judgment reversed and the party restored to all things which he has lost by occasion of such erroneous judgment and the proceedings thereon. Jacques v. Caesar, 2 Saunders, 101z. (in note).
There should be judgment to that effect.
PER CURIAM. Reversed.
Cited: S. v. Sanders,
