Hinton v. . Deans

75 N.C. 18 | N.C. | 1876

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. Bat. 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 was decided in Cowles v. Haynes,69 N.C. 128.

II. The defendant moved in the Superior Court to be allowed (20) to plead the statute of limitations, which the judge refused. Section 503 of C. C. P., 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 defense. Rule IX says the pleadings may be amended "upon appeal when by such amendment substantial justice will be promoted." By section 539, if the judgment exceeds twenty-five dollars, 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 depends on sections 131, etc., of C. C. P., 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 up to that time. The Code is liberal in allowing amendments, but the adding of a new plea stands on different grounds from the amending of a formal or even a substantial defect in a plea which does not introduce a substantially new defense. 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 or refuse it altogether.

PER CURIAM. No error. Cited: Lane v. Morton, 78 N.C. 7; Johnson v. Rowland, 80 N.C. 3;Henry v. Cannon, 86 N.C. 25; Long v. Logan, ib., 537; Poston v. Rose,87 N.C. 282; Wiggins v. McCoy, ib., 500; Moore v. Garner, 109 N.C. 158;Beville v. Cox, ib., 268.

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