Lash v. . Thomas

Ruffin, J. The plaintiffs’ counsel, by his argument and the cases cited in his brief, seems effectually to have met every objection urged by the defendants in the court below. Upon the first point, the case of Ward v. Saunders, 6 Ired., 382, is a direct authority. It was there held that the direction given in the statute (Rev. Code, ch. 62, § 17) for recording in a book the proceedings before a justice, w'as but a provision for their preservation, and that when the original papers are allowed to be read without objection, it must be understood, that they were received as evidence of everything that would appear from a certified transcript of the record of their enrolment. Notwithstanding the adoption of the constitution of 1868, and the fact that it went into effect in April of that year, (as it was said in Pemberton v. McRae, 75 N. C., 497, to have done for purposes of domestic policy,) still the courts, which *316 existed under the old system, did not cease to do so, or to entertain actions, until the adoption of the Code of Civil Procedure. It would appear from the wording of the 25th section of article four of the constitution, as if such a state of things was positively contemplated. For not only is provision there made for the future conduct of actions pending at the adoption of the constitution, but also, for all such as might have been commenced, at any time, before the adoption, by the general assembly, of the new rules of practice and procedure. But whether that be so or not, it is certainly true that generally in the state, the county courts continued to sit and to render judgments at least so late as May, 1868, and so far as we can learn, their validity has never been questioned, Two striking instances were called to our attention by counsel — Thompson v. Berry, 64 N. C., 81, where at the May term, 1868, of Iredell county court a judgment nisi was rendered against the sheriff of Burke for not making due return of an execution returnable to that term, and the same was held good in this court; and Davis v. Baker, 67 N. C., 388, where the county court of Wayne county at May term, 1868, gave final judgment on a justice’s attachment and ordered a venditioni exponas to issue, under which there was a sale, the validity of which was sustained by this court. It is true no such point as that now raised was made in those cases, and they are referred to only as instances in which the existence of the county courts, at that time, as courts, was recognized, and their power to render judgments and enforce their execution. Being then a cause pending in the county court, it was properly transferred to the superior court upon the adoption of the Code, and under section 402 thereof, was rightly “proceeded in, and tried according to existing laws and rules applicable thereto.” No error. Affirmed,