Cook v. . Bailey

ClaRKsoN, J. Section 6(a), Public-Local Laws 1915, chap. 520, establishing “Forsyth County Court” is as follows: “That appeals may be taken by either the plaintiff or the defendant from the Forsyth County Court to the Superior Court of Forsyth County in term-time for errors assigned in matters of law in the same manner and under the same *601 requirements as are now provided by law for appeals from tbe Superior Court to tbe Supreme Court, with, tbe exception tbat tbe record may be typewritten instead of printed and only one copy thereof shall be required ; tbat tbe time for taking and perfecting appeals shall be counted from tbe end of tbe term; tbat upon appeals from tbe Forsyth County Court tbe Superior Court may either 'affirm, modify and affirm tbe judgment of Forsyth County Court, or remand tbe cause to tbe county court for a new trial.” It will be noted tbat tbe appeal from tbe Forsyth County Court to tbe Superior Court is for “errors assigned in matters of law in tbe same manner and under tbe same requirements as are now provided by law for appeals from tbe Superior Court to tbe Supreme Court.” Appeals must be taken from an inferior court to tbe Superior Court and thence to the Supreme Court. Rhyne v. Lipscombe, 122 N. C., 650; S. v. Lytle, 138 N. C., 741; Oil Co. v. Grocery Co., 169 N. C., 523; Hosiery Mills v. R. R., 174 N. C., 453; Sewing Machine Co. v. Burger, 181 N. C., 241; Thompson v. Dillingham, 183 N. C., 568. In S. v. Thompson, 83 N. C., p. 596, the question presented to tbe Court, from an appeal from tbe inferior court of Chatham County to tbe Superior Court of said county, was “whether a defendant who bad been tried and convicted by a jury in tbe inferior court, upon bis appeal to tbe Superior Court has a right to a trial by a jury de novo in tbat court,” Ashe, J., said, tbe “question has been decided at this term in tbe case of S. v. Ham, ante, 590, where it was held tbat on an appeal from tbe inferior to tbe Superior Court from a judgment rendered in tbe former court upon a verdict of guilty, tbe defendant bad no right to a trial de novo, upon tbe facts of bis case, in tbe latter court, but only to have bis case reviewed upon any decision in tbe inferior court on any matter of law or legal inference tbat may have arisen on bis trial in tbat court, in tbe same manner and under tbe same restrictions provided now by law for appeals from tbe Superior to tbe Supreme Court of tbe State.” In tbe Ham case, supra, tbe statute of tbe inferior court, in reference to appeals to tbe Superior Court, was practically tbe same as tbe one here in tbe Forsyth County Court. S. v. Hinson, 123 N. C., p. 755. Tbe Superior Court on appeal, under tbe statutory provisions in tbe act establishing Forsyth County Court, could only bear errors of law. Under tbe act tbe Superior Court has jurisdiction in tbe same manner and under tbe same requirements as provided for appeals from tbe Superior to tbe Supreme Court. Thus in tbe review upon appeal to tbe Superior Court tbe decision of tbe Forsyth County Court can only be beard upon “matters of law or legal inference.” Tbe facts found by tbe judge of tbe Forsyth County Court are binding on tbe Superior Court— *602 if there is any evidence to support them. If sufficient facts are not found, the judge of the Superior Court might remand the case for additional findings, but the findings of the Forsyth County Court are binding. The judge of the County Court did not find that the defendant had a “meritorious defense,” nor did he find the contrary. The finding only recited the fact that the answer “denying the material allegations of the complaint, which shows a meritorious defense.” The judge of the Superior Court went further and found that “the defendant has a meritorious defense in this action.” This, under the law, he had no power to do, but should have remanded the cause to the county court for fuller findings. This is fully warranted by the statute, supra, analogous to practice in the Supreme Court. In Bank v. Duke, 187 N. C., 389, it was said: “It is well settled in this State that the application should show not only mistake, inadvertence, surprise or excusable neglect, but also a meritorious defense. Land Co. v. Wooten, 177 N. C., 250, and cases cited; 23 Cyc., 962, 1031.” Battle v. Mercer, 187 N. C., p. 441. In Bank v. Duke, supra, p. 390, it was said: “It is the duty of the court below to find the facts, and his finding is ordinarily conclusive. Upon the facts found, the conclusion of law only is reviewable.” Turner v. Southeastern G. & L. S. Co., ante, 331. The power of the Forsyth County Court in other aspects has been passed upon in Chemical Co. v. Turner, ante, 471. The Superior Court having no power or authority to find the facts, and there being no affirmative finding of fact by the judge of the Forsyth County Court that defendant had a “meritorious defense,” the judgment of the Superior Court is Beversed.