Opinion
(August Term, 1847.)
Where, in a suit pending in the county court, an award by referees under a rule of court is made in favor of the plaintiff, and the court sets aside the award and orders a trial, upon which there is a verdict for the defendant, the plaintiff cannot, by then appealing, bring the questions on the award before the Superior Court. He should, as he had a right to do, have appealed from the decision of the county court upon the award.
APPEAL from WILKES Spring Term, 1847; Settle, J.
The writ in this case was returned to August Term, 1839, of Wilkes County Court. At February Term, 1844, the case was referred by a rule of court to L. Q. Sharp, and his award was returned to April Term, 1844. On the motion of the defendant the award was set aside at the same term, and the cause was ordered to stand for trial. At May Term, 1846, the issues were tried on the pleas of the general issue, convenants performed, no breach, and a verdict was rendered for the defendant. An appeal was taken to the Superior Court, and, on motion of the plaintiff's counsel, judgment was by the court rendered according to the award in the county court. From this judgment the defendant appealed.
Iredell for plaintiff.
No counsel for defendant.
In the opinion of his Honor, there is error. The judgment of the county court upon the award was final, in form at least, upon that point, and it materially affected the subject-matter in dispute. The defendant, against whose interest the judgment operated, had (376) a right to appeal to the Superior Court, that a review of the error of the county court might be had, if there was any. He failed to do so, and the cause went on to be tried by the jury; and, upon a verdict and judgment against him, he appealed to the Superior Court. We are of opinion that the appeal did not take up the judgment of the county court upon the award. The objections to that judgment were waived by the plaintiff because he did not bring them forward in proper time, as he might have done by an appeal. Upon the appeal as taken, the award was not before the appelate [appellate] court, and the cause ought to have proceeded as it did in the county court. Harvey v. Smith, 18 N.C. 189, recognizes the true and establishes an exception to it. That was a case of a petition for the reprobate of a will. In the county court the prayer for reprobate was granted, and issues were made up to try the validity of the will. These were submitted to a jury, who returned a verdict, and an appeal was taken to the Superior Court, where, upon motion, the proceedings were dismissed by the presiding judge for error in the judgment for reprobate of the will. The Supreme Court, after recognizing the rule herein stated, proceeds: "But, nevertheless, we are of opinion that where, upon a petition for a reprobate, and the same has been ordered and an appeal taken by either party from the ultimate sentence upon such a reprobate, that appeal places the entire cause in the revising court." And the reason given is that the petition must be considered as containing the allegations of those propounding the paper, and the ultimate judgment must be founded on those allegations, as admitted or proved. "If they will not authorize a sentence for the party propounding, the court is obliged to refuse to him such a sentence." The decision in that case rests upon the peculiar nature of the proceedings, which distinguish it from the present. But if the award had been before the court, the judgment affirming it was erroneous. Upon it face it was not final. (377)
PER CURIAM. Reversed, and order of procedendo.
Cited: Anders v. Anders, 49 N.C. 245.