Allison v. . Hancock , 13 N.C. 296 ( 1830 )

FROM ORANGE. This suit was commenced in the County Court, and brought by appeal to the Superior Court. Upon the question of juristion [jurisdiction] it is to be treated in the latter Courts as if still pending in the Court below. By Laws 1804 (Rev., ch. 650) and of 1820 (Ib., ch. 1045), suits brought in any Court for sums less than therein mentioned are to be abated on the plea of the defendant. A plea is, therefore, the only method of taking advantage of the want of jurisdiction. We do not find any statute giving the power of nonsuiting the plaintiff if he recover less than a particular sum, as is provided respecting the Superior Courts by the act of 1777 (Rev., ch. 115, sec. 10). But if this were in the Superior Court the plaintiff would still be entitled to judgment. For the Court does not, ex officio, order a nonsuit. It acts only on the defendant's motion to that effect; for it may be that the defendant would prefer the bar to a verdict for a certain sum to letting the plaintiff at large again; and the provision is not to be construed in favor of the plaintiff, but the defendant only. And if there be such a motion the plaintiff is permitted to avoid its operation by his affidavit that more was really due.

Here no motion is made for a nonsuit, but only a for a new trial. We see no ground for saying there ought to be a new trial; for it does not appear that the plaintiff recovered more than in law and justice (298) was due him. Had there been a specific motion for a nonsuit the plaintiff, by his affidavit, might have explained the true time of entering the credit on his account, and showed that it was after suit brought, or the Court might, from the Judge's notes, have modified the verdict so as to give the defendant the advantage of his account by way of set-off instead of payment. We cannot tell how the facts might have been made to appear. There was no motion for a nonsuit, and there is ground for a new trial.

PER CURIAM. No Error.

Cited: Kingsbury v. Hughes, 61 N.C. 331; Brown v. King, 107 N.C. 316.