Thompson v. Lynchburg Notion Co.

Allen, J. This action was commenced before a justice of tbe peace to recover $197.50, and tbe service of tbe summons was by publication. Tbe defendant did not appear on tbe return day, and judgment was rendered against it, and thereafter, tbe time not being stated, having received notice of tbe judgment, it moved before tbe justice for a rehearing. Tbe motion was denied, and tbe defendant appealed to tbe Superior Court. In tbe Superior [523] Court the motion was allowed, and the plaintiff appealed to this Court. This brief summary of the facts is given for the purpose of showing that the only question before us is the correctness of the ruling upon the motion to rehear. Finlayson v. Accident Co., 109 N. C., 201; Clark v. Manufacturing Co., 110 N. C., 112. In the Clark case the Court says: “The defendant is a nonresident corporation; it was not served with process, and did not appear and answer at the trial before the justice. It had the right to appeal after notice of the judgment. The Code, 876. It appears, however, that the defendant attempted to appeal, not from the judgment generally, but by a limited notice of appeal in the nature of a special appearance. We know of no authority or reason for such practice. An appeal must be from the judgment rendered. If, after the judgment, the defendant, appearing specially for the purposes of the motion, had moved to set aside the judgment for defective publication, and the motion had been denied, an appeal would have carried up only that ruling. Finlayson v. Accident Association, 109 N. C., 196. The motion of the defendant is made under section 449 of the Eevisal, which provides: “The defendant against whom publication is ordered, or who" is served under the provisions of the preceding section, or his representatives, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action; and, except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, be .allowed to defend after judgment, or at any time within one year after notice thereof, and within five years after its rendition, on such terms as may be just; and if the defense be successful and the judgment or any part thereof shall have been collected or otherwise enforced, such restitution may thereupon be compelled as the court may direct; but title to property sold under such judgment to a purchaser in good faith shall not be thereby affected.” This section is a part of the Code of Civil Procedure, and refers primarily to 'actions in the Superior Court, the summons [524] of wbicb “publication is ordered,” or which, is served as provided in “the preceding section” (Revisal, sec. 448), being one which runs in the name of the State, and is signed by the clerk of the Superior Court. Revisal, sec. 430. We must then turn to the sections of the Revisal regulating procedure befpre justices of the peace, to see how far the provisions of the Code of Civil Procedure are made applicable to such procedure, and when we do so we find three sections referring to the subject: Section 1473: “The chapter on civil procedure, respecting forms of actions, parties to actions, the time of commencing actions, and the service of process, sháll apply to justices’ courts.” Section 1474: “The chaiiter on civil procedure is applicable to proceedings by attachment before justices of the peace, in all cases founded on contract -wherein the sum demanded does not exceed $200, and where the title to real estate is not in controversy.” Section 1475: “The chapter on civil procedure is applicable, except as herein otherwise provided, to proceedings in justices’ courts concerning claim and delivery of personal property, and arrest and bail, substituting the words 'justice of the. peace’ for 'judge,’ 'clerk,’ or 'clerks of the court,’ and inserting the words 'or constable’ after 'sheriff’ whenever they occur.” The only one of these that can by any possibility include section 449 of the Revisal is the first, and that refers only to “forms of actions,” “parties to actions,” “times of commencing actions,” and “service of process,” which falls short of the relief provided in section 449, which relates to judgments after the process has been served. We conclude, therefore, that the remedy of the defendant must be found elsewhere in the Revisal. It is true that in Turner v. Machine Co., 133 N. C., 381, an appeal was entertained from a motion to rehear made before a justice, but the right to this remedy was not considered, and it was unnecessary to do so, because it was held that the defendant had lost the right to any relief by his negligence. [525] It was, however, strongly intimated in that ease that a letter not so insistent as tbe one written by tbe attorney of tbe plaintiff in tbis, was sufficient to put tbe defendant on notice that an action would be instituted, and to require investigation; but wbat is there said must be considered in connection witb the facts, it appearing tbat an agent of tbe defendant knew of tbe pendency of tbe action, and tbat no motion was made until about five months after tbe rendition of tbe judgment, and we do not rest our decision on tbis ground. When we look to tbe procedure prescribed, we find first tbat “a new trial is not allowed in a justice’s court in any case whatever, but either party dissatisfied witb tbe judgment in such court may appeal therefrom to tbe Superior Court” (Revisal, sec. 1489), “tbe purpose (of which) seems to have been to prevent parties from using their right to a new trial in an intermediate nisi prius court, as a means of causing useless delay and subjecting tbe successful party, meantime, to tbe risk of losing tbe fruits of bis victory” (Ballard v. Gay, 108 N. C., 546), and “to limit tbe control of justices over their own judgments within a brief period of time.” Guano Co. v. Bridgers, 93 N. C., 441. This section (Revisal, sec. 1489) is very near, if not a positive prohibition upon a motion to rehear when tbe summons has been served regularly, as in tbis case, as there is only a difference in name between a motion to rehear and a motion for a new trial. Tbe statutes, however, provide a remedy. If tbe judgment is rendered in tbe absence of tbe defendant, and tbe process is defective, or there is tbe appearance of service when in fact none, tbe defendant may move before tbe justice to set. tbe judgment aside (McKee v. Angel, 90 N. C., 62; Whitehurst v. Trans. Co., 109 N. C., 344), or if tbe process is regular and has been served personally, and tbe absence of tbe defendant has been caused by sickness, excusable mistake, or neglect, be may move for a rehearing, as provided in Revisal, sec. 1478, but “if tbe judgment is rendered upon process not personally served, and tbe defendant did not appear and answer, be shall have fifteen days, after personal notice of tbe rendition of tbe judgment, to serve tbe notice of appeal.” Revisal, sec. 1491. [526] Tbe last section fits tbe case of tbe defendant, and amply preserves and protects bis rights, as upon appeal tbe trial will be de novo, and as be bas bad no opportunity to plead before tbe justice, be will be permitted to enter any defenses. We are, therefore, of opinion that tbe defendant was not entitled to a rehearing, and that there is error. Reversed.