Kearney v. . Jeffreys

30 N.C. 96 | N.C. | 1847

This is a proceeding under the act giving damages to (97) the owner of stock which has been injured by another. Rev. St., ch. 48, sec. 3. The plaintiff alleges that his stock has been injured by the defendant, within her enclosed grounds, or by others acting under her authority. From the assessment made by the magistrate and freeholders, and the judgment rendered thereon, the defendant appealed to the Country Court, and from the judgment of that tribunal to the Superior Court. In each court a motion was made by the defendant to quash the proceedings for error. The error assigned in the case is that the magistrate in his warrant designates the name of one of the freeholders to be summoned.

In the Superior Court the motion was overruled. From this judgment she was allowed to appeal. In Laws 1777, ch. 121, the Legislature declare for what trespasses committed by the stock of one man upon the enclosed grounds of another the latter shall be entitled to compensation in damages, and how they shall be ascertained. Section 2 declares what shall be a sufficient fence in law to give the owner a right of complaint for being trespassed on, and section 3 directs that upon complaint made to a magistrate he shall cause two freeholders to be summoned, who, together with himself, shall view the fence of the person complaining, where the trespass is alleged to have been committed, and ascertain whether it is such as the law requires, and if it is, what damages he has sustained, and certify the same under their hands and seals. The damages so assessed are made recoverable before any tribunal having cognizance of them. Section 4 makes (98) provision for the recovery of damages by the owner for injury committed to it, and directs the same proceedings as in section 3. It is under this section that these proceedings have been instituted. This act gave no appeal to either party. The report made by the magistrate and the two freeholders was conclusive. Nelson v. Stewart 6 N.C. 298. The oppression and injustice which might be effected under a proceeding so contrary to the principles of the common law came under the consideration of the Legislature at its session in 1831. Ch. 2, secs. 2, 3. This act changed the mode of obtaining judgment for the damages assessed by the magistrate and freeholders, and authorized the magistrate to gave a judgment forthwith if the damages were not immediately paid. It also removed the objectionable feature of the old law by giving the right of appeal to either party. And it directs that when the case is carried into the County Court the trial shall be in all respects de novo; the parties are permitted to plead, and issues are to be made up, as in cases of actions of trespass. This provision extends to injuries of both kinds. In either case the cause in the appellate court becomes, as to all subsequent proceedings, a regular suit. The proceedings before the magistrate and the freeholders, then, answer no other purpose than as the foundation of bringing the case into court, and the court could take no notice of any defect in the certificate of the magistrate, and the freeholders, because it is superseded by the appeal. This results from the special provisions of the act of 1831. But it does not follow that the party considering himself aggrieved by the judgment may remove his case into the Superior Court by a writ of false judgment, where the errors complained of may be rectified; or, if he wishes (99) to place himself upon the merits of his cause and to controvert the facts, he may demand a trial by a jury, in the way pointed out in the act. If the defendant in this case had chosen the former course, there is little doubt the proceedings would have been quashed for the want of seals to the certificates of the magistrate and freeholders. Then, as to the alleged defect in the warrant, while it is admitted that in every case the process, which stands in the place of a declaration, must show a case substantially within the jurisdiction of the magistrate, yet we think the particular objection here made cannot avail. It refers, exclusively, to the mode of designating the freeholders, and therefore, if a good objection at all, is immaterial to the controversy in the present stage of it, since, as we have already shown, the proceedings of the freeholders were vacated by the appeal. Consequently it is of no importance now how they were summoned.

We see no error in the interlocutory judgment appealed from.

PER CURIAM. No Error.

Cited: Bailey v. Bryan, 48 N.C. 358.

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