This suit was begun by a warrant for "$12 forfeited by the defendant by not working on a public road leading," etc., "for twelve days, though lawfully summoned by the plaintiff, the overseer of said road." the magistrate gave judgment against defendant for $12 and costs, and plaintiff appealed; and at the next term of the county court, in February, 1851, the appeal was returned, and for want of defendant's appearance, the plaintiff's attorney took a judgment by default final for $12 and costs. At May term following, the county court, for cause shown by defendant, ordered that the judgment by default should be set aside and defendant allowed to plead; and plaintiff appealed from the order. His Honor was of opinion that the judgment by default in the county court ought not to have been final, and that it was irregular thus to enter it in the office; and, therefore, it was proper to set it aside. But his Honor was further of opinion that an appeal did not (113) lie from the order of the county court, and for that reason he dismissed the appeals and then awarded a procedendo, and plaintiff appealed to this Court.
It was a mistake to suppose that an appeal does not lie to the Superior Court from an order of the county court allowing an amendment or setting aside a judgment for irregularity, as the contrary has been often decided.Slade v. Burton, 32 N.C. 390. But the Court concurs in the opinion on the other point, and that is decisive of the case against the plaintiff. As warrants do not, like declarations in debt, define particularly the bond or other specialty on which they demand a debt, it follows that they must be regarded in the light of declarations in assumpsit, or other actions sounding in damages. Duffy v. Averitt,27 N.C. 455; Emmitt v. McMillan, ante, 7. Besides the reasons given in those cases for the rule, it may be mentioned that it is further supported by the consideration that the statute requires that the suit shall be by warrant for all sums of $60 or under "for a balance due on any special contract or note"; since it cannot be supposed to be required of the plaintiff to state the exact balance, throwing on him the risk of allowing the payments precisely, and making the calculation of interest with perfect correctness. There cannot, therefore, properly be
a final judgment by default upon appeal from a justice of the peace; but the matter must be determined upon proofs, either by the court or by a jury, as mentioned in Ransom v. Harshaw, 30 N.C. 480. That was not the course in this case, but the judgment was entered (114) without the intervention of the court in the office, as of course, and, therefore, was erroneous and irregular. Such judgments are, of necessity, always under the control of the court whose judgments they purport to be, and of an appellate court, which can treat the matter denovo Bender v. Askew, 14 N.C. 150; Keaton v. Banks, 32 N.C. 381.
PER CURIAM. Affirmed.
Cited: Murphrey v. Wood, 47 N.C. 65; Powell v. Jopling, ibid., 403;Underwood v. McLaurin, 49 N.C. 18; Griffin v. Hinson, 51 N.C. 156;Parker v. Express Co., 132 N.C. 130.
Dist: White v. Snow, 71 N.C. 234.