24 N.C. 44 | N.C. | 1841
The transcript in this case shows that on 29 November, 1837, a warrant was issued by John Witherow, a justice of the peace of the county of Haywood, summoning the defendant to appear and answer the complaint of Charles Bumgarner, who sued as well for himself as the wardens of the poor of said county, in a plea of debt for $100, due by penalty under the act of 1826, for trading with David, the slave of Robert Love. On 2 December following, judgment was rendered thereon by the said Witherow and J. L. Dillard, justices of the peace, in the following words: "Judgment for the sum of $1.20 against the wardens"; and on the 9th of said month, the necessary affidavit having been made, an appeal from the said judgment was granted "to the plaintiff" by John B. Love, another justice of the said county. Mr. Francis, (45) as attorney "for the plaintiffs," on the same day gave notice to the justices Witherow and Dillard of this appeal, and required them to return the papers in the cause to the next county court. Afterwards, to wit, on 25 December, 1837, it appears from the transcript that the parties met and agreed "to have the business reconsidered," and on the succeeding day, 26 December, judgment was by consent rendered against the defendant, before Justice Dillard, for $100, and it was indorsed that the plaintiff, Bumgarner, agrees to claim only $50 of the Judgment from the defendant, for which execution shall issue, and cost, $1.20. At January Term, 1838, of Haywood County Court the case is docketed as a suit of the wardens of the poor on relation of Charles Bumgarner against Andrew Cope, and after several continuances, the court, at January Term, 1839, dismissed the suit. From this order or judgment it is stated that the wardens, by their counsel, appealed to the Superior Court, and *36 in that court, at the last term thereof, on motion of the defendant's counsel, the cause was ordered to be dismissed, and the wardens appealed to this Court.
To us it seems that there was no error in the order or judgment of the Superior Court. When the first judgment was rendered on the warrant, the plaintiff had a right, within ten days, upon sufficient cause shown, to appeal therefrom, and, having exercised that right, the judgment was thereby vacated, and the further exercise of jurisdiction over the case by a justice out of court was at an end. But the appeal had not yet been returned to court; the papers were in the hands of the magistrate, and we see no reason why the parties might not then consent to withdraw the appeal, set aside the judgment, and try the cause de novo. No consent can give jurisdiction over a subject-matter to a tribunal which by law cannot take cognizance of it; but after a judgment has been rendered in a court, and while the record yet remains there, the parties may consent that the judgment be set aside; and when the judgment is set aside, the case is again open for the exercise of the jurisdiction which such (46) court has by law over the subject-matter of the controversy. From the last judgment, that is, the one confessed by the defendant, there was no appeal; and we are at a loss to conceive what was the matter in dispute which the wardens supposed that the county or Superior Court had under their consideration. The wardens had no right to complain that Bumgarner had released a moiety of the judgment. He was personally entitled to a moiety, and this he could release. But the interest in the other moiety of the debt was the property of the wardens, and this he did not release, because he could not release it.
The judgment of the Superior Court.
PER CURIAM. Affirmed with costs.
Cited: Carroll v. McGee,
