Opinion
(June Term, 1860.)
1. A corporation may be sued in the county court in any county in the State where the plaintiff resides.
2. Where the defendant, in a county court, pleaded in abatement to the jurisdiction of the court, to which the plaintiff demurred, and the court overruled the demurrer and sustained the plea, on an appeal to the Superior Court, where the judgment below was properly reversed and the jurisdiction of the county court sustained, it was Held that it was error to order a procedendo to the county court, for that the whole case was brought up to the Superior Court.
ASSUMPSIT, tried before Bailey, J., at last Spring Term of GUILFORD.
(501) Morehead and Geo. E. Badger for plaintiff.
McLean and B. F. Moore for defendant.
The writ in this case was returnable to the Court of Pleas and Quarter Sessions of Guilford County, and served on one of the directors of the railroad. At the return term the defendant, by its attorney, pleaded that John D. Whitford (and others, mentioning them) "were, during all the time aforesaid, and now are, the directors of the said Atlantic and North Carolina Railroad Company, and that John D. Whitford was president of the road," and the plea sets out the residences of these several individuals, which were all beyond the limits of Guilford County, and prays judgment whether the court will take further cognizance of the action.
To this plea the plaintiff demurred, and there being a joinder in demurrer, the county court, on argument, overruled the demurrer and sustained the plea, and gave judgment that the action be abated, from which the plaintiff appealed to the Superior Court.
In the Superior Court the judgment was that the plea is insufficient, and the demurrer was sustained, and that the defendant answer over, and that a writ of procedendo issue to the county court for that purpose. From this judgment the defendant appealed.
A corporation has no actual residence, and no residence, in contemplation of law, is given to the defendant by statute. The allegation of the residence of the president and other officers, set out in the plea, is immaterial, and has no bearing on the question of jurisdiction; for the officers are not parties to the action, and the reference made to them in the statute is merely for the sake of providing a mode for the service of process, and does not affect the question of venue. It follows that the suit was properly instituted in the county where the plaintiff resides, and that the court of pleas and quarter sessions of that county had jurisdiction. There is, consequently, no error in so much of the judgment of the Superior Court as sustains the demurrer and requires the defendant to answer over.
But this Court is of opinion there is error in that part of the judgment which directs a writ of procedendo to issue to the county court.
It is settled that where the judgment of the county court is final, so as to put an end to the case so far as that court is concerned, under our statutory provisions in regard to appeals from the county to the Superior Courts, the appeal brings up the case and so constitutes it in the Superior Court that all further proceedings are to be had in that court ( Shaffer v. Fogleman, 44 N.C. 280; Russell v. Saunders, 48 N.C. 432); for, as the case is out of the county court, no legitimate purpose can be answered by sending it back, inasmuch as, after a trial there, either party would again have the right of appeal, by which the case would be brought back to the Superior Court, where there would be a trial de novo, treating the whole proceeding in the county court as vacated by the appeal, which circuity would, of course, be attended with delay and useless expense.
It was said on the argument, as the county court erred in refusing to take jurisdiction, the proper way to correct the error is to send (502) the case back, for, unless that be done, the plaintiff will be deprived of the fruits of his appeal, and the position was assumed that a case should always be sent back where it was not tried on its merits in the county court. We think the proposition is laid down too broadly. By entertaining the suit in the Superior Court, the error of the county court is corrected, and the plaintiff has the fruits of his appeal by having a suit commenced on the day the writ issued, and by having the case treated as if it had been instituted in the county court, and he is put in the same plight and condition as if there had been a trial in that court on the merits and an appeal to the Superior Court. Suppose any other plea in abatement — one for a misnomer, for instance — had been sustained, or suppose on the trial of the general issue a witness for the plaintiff had been rejected and thereupon he had submitted to a nonsuit and appealed, he could, with like reason, insist that the only proper way to correct the error is to send the case back; and it could with equal propriety be asked, Cui bono? Why incur the unnecessary delay and expense, as a second appeal will vacate all that is done?
PER CURIAM. Reversed.
Cited: Millsaps v. McLean, 60 N.C. 82; Overton v. Abbott, 61 N.C. 294; Stancill v. Branch, id., 218.