Opinion
(December Term, 1842.)
1. Where an appeal is taken from the judgment of a justice of the peace, and is reversed in the County Court, but on appeal to the Superior Court is there affirmed, the surety for the appeal from the justice is still bound.
2. A surety for an appeal from a justice, can only be bound, according to an act of Assembly, when he subscribes his name himself, a subscription by another, in his presence, and at his request, is not sufficient — but when he holds the pen, and another guides it, to sign his name, this is a signature by himself.
3. Judicial proceedings before a justice of the peace, are conclusive in their effects — but they do not prove themselves, like records — parol evidence may be introduced to prove that they are void.
4. A surety who signs an appeal from the judgment of a justice will be bound, although the appeal is taken after the time allowed by the act of Assembly for taking an appeal, provided the opposite party consents that the appeal may be then taken.
APPEAL from Bailey, J., at Spring Term, 1842, of CHEROKEE.
(14) The action commenced before a Justice of the Peace, and on a judgment being rendered against the defendant, he appealed to the County Court. The plaintiff was there nonsuited, and appealed to the Superior Court, in which latter Court, a verdict and judgment were rendered for the plaintiff. A motion was then made by the plaintiff's attorney for judgment against the surety, for the appeal from the Justice of the Peace. On this motion, it was proved by the justice, who granted the appeal, that the appeal was prayed at the time of trial, but the defendant, being unprepared with surety, did not then give it. The ten days, allowed by the Act of Assembly for an appeal, had elapsed before he saw the surety. The plaintiff and the defendant both being present, it was agreed that the appeal might go up. The surety then directed the justice to put his name as surety for him, and held the top of the pen while it was done. It was then attested by the justice of the peace, in the presence of the surety and of the parties. Upon this state of facts, the Judge refused to give a judgment against the surety, and the plaintiff appealed to the Supreme Court.
Clingman, for the plaintiff.
Francis, for the defendant.
Three objections appear to have been made by the defendant, to the prayer of the plaintiff for a judgment against him. He insisted, first, that, as his principal succeeded in the County (15) Court in reversing the judgment rendered by the magistrate, the defendant's liability as surety for the appeal, was at an end; secondly, that he did not "subscribe" the engagement to be surety for the appeal, as required by the act of 1794 (Rev. St., c. 62, s. 23); and thirdly, that the engagement having been taken by the magistrate after the expiration of the ten days, allowed by that act for granting an appeal, it was taken coram non judice, and was therefore null.
The first objection was clearly untenable. Dolby v. Jones, 13 N.C. 109, is decisive that the surety for an appeal from the judgment of a magistrate, is surety to the action, and is bound to satisfy the judgment, which may be finally rendered therein against the appellant.
In answer to the second and third objections, it has been here urged that they ought not to have been entertained, for that the certified proceedings of the magistrate are in the nature of a record, and that evidence cannot be received to contradict them. We are not satisfied with this answer. The extrinsic evidence was not offered to impeach the force of the acknowledgment, made by the defendant as surety for the appeal, but to show that such acknowledgment was not made with the formalities required by law, or was made before one who had not jurisdiction to take it, and therefore was not in truth what it purported to be. The judicial proceedings before magistrates, do certainly resemble records in the conclusiveness of their effect, but they differ from records in this, that they do not conclusively prove themselves. Thus it may be shown, that a judgment which purports to have been rendered in a county, where a magistrate has jurisdiction, was in fact rendered out of his county. Hamilton v. Wright, 11 N.C. 283.
But while we hold the evidence to have been admissible, we agree with the counsel for the plaintiff, that the matters thereby shown, constituted no defence against the plaintiff's prayer. The act of 1794 does indeed require, that the surety for the appeal shall himself subscribe the acknowledgment before the magistrate, and this requisition would not, in our opinion, have been complied with, if the witness' (16) name had been subscribed by another in his presence, or by his direction. But in this case, the subscription was made by himself. He actually held the pen while the signature was written, and it was not the less his subscription, because he had the aid of a magistrate in making it. It is true, also, that the act of 1794 limits the time within which a defendant may demand an appeal from the judgment of a magistrate, to ten days after the judgment shall have been rendered, but we cannot doubt that, with the consent of the parties, the appeal may be taken after the expiration of the limited time. No consent can give jurisdiction where the law withholds it, but consent may enlarge the time, within which a legal privilege can be exercised. Wardens v. Cope, 24 N.C. 44.
We are of opinion, that the judgment below is erroneous, and ought to be reversed, and that the plaintiff is entitled to have judgment, as prayed for against the defendant, and to recover the costs of this appeal.
PER CURIAM. Judgment accordingly.
Cited: Long v. Weaver, 52 N.C. 627; Reeves v. Davis, 80 N.C. 210; Spillman v. Williams, 91 N.C. 489.
(17)