47 S.E. 463 | N.C. | 1904
Judgment was rendered before a justice of the peace September 30, 1902. The defendant took no appeal, but at December Term, 1902, on application to the Superior Court, obtained an order for a recordari and supersedeas. The defendant failed to give bond or to have the case docketed, either at that term or at the next succeeding term of the Superior Court, which was held in February, 1903. At the March Term the plaintiff moved to docket and dismiss. This was refused, and the plaintiff excepted. At the September Term, 1903, the recordari and supersedeas not having been yet docketed, the plaintiff again moved to docket and dismiss. This was refused and the defendant was allowed to docket the recordari and supersedeas at that term, and the plaintiff again excepted. A trial by jury was had, with verdict against the defendant, which the Court set aside on the ground that he had misdirected the jury to allow sick benefits, whereas, subsequent to the contract, the General Order had changed its constitution so as to provide that sick benefits should not be paid by the defendant, but by the subordinate lodges, and the plaintiff excepted.
There was error in both particulars. The recordari was granted as a substitute for an appeal, and not having been docketed, the plaintiff had a right to docket the case and have it dismissed at March Term, 1903, and also at September Term. Clark's Code (3 Ed.), page 731; *275 Brown v. Plott,
As to the second ground, the defendant could not change its (387) constitution subsequent to the contract, to the detriment of the other party, except by mutual consent. Bragaw v. Lodge,
The judge having set aside the verdict and granted a new trial for a supposed error of law, an appeal lies to review him. Bryan v. Heck,
The defendant's exception to the jurisdiction, taken in this Court, that the defendant is a foreign corporation and not domesticated here, hence cannot be sued here, is without merit. The summons was served on its agent.Jester v. Packet Co.,
The order setting aside the verdict and judgment is reversed. This renders it unnecessary to direct the dismissal of the recordari.
Reversed.
Cited: McKensie v. Development Co.,
(388)