HAWKS v. HALL.
(Filed October 3, 1905).
Return to Notice of Appeal — Justices of the Peace.
1. The failure of a justice of the peace to sign the return to notice of appeal does not vitiate the proceedings in the Superior Court, where the appellant' had given notice of appeal and paid the justice’s fee, and the appellee made no motion for any purpose, but made a general appearance in the Superior Court at the trial in person and by attorney.
2. If the justice fails to discharge his duty to make his “return of appeal,” he may be compelled to do so by attachment, and if the return be defective, the jitdge may direct a further or amended return.
• ActioN by A. IL Hawks against A. M. Hall, heard on appeal from a justice of the peace by Judge O. II. Allen and a jury, at the May Term, 1905, of the Superior Court of Sampson County.
This action was begun in a justice’s court, and was to recover the sum of $34.75, with interest thereon from the 12th *177day of September, 1903. Summons was issued on May. 16,, 1904, and ease was tried before B. II. Hubbard, J. P., on May 24, 1904. The justice rendered judgment for the defendant against the plaintiff for cost. Plaintiff gave verbal notice of appeal in open'court when judgment was rendered, and paid the justice the appeal fee. The justice sent up to the court all the papers in the case, with a paper, entitled A., K. Hawks v. A. M. Hall, purporting to be a return to notice of .appeal. This paper is-dated May 24,. 1904, and is n,qt signed by any one. It recites that it was issued pursuant to annexed notice of appeal, but no notice is annexed, and none was sent,up in the papers. The notice being given in open court, as above stated, upon this unsigned return, the case was docketed in the Superior Court on July 18, 1904, No written pleadings were filed in the .justice’s court, and there was no pleading in the Superior Court, except as com-tained in the unsigned “return to notice of appeal,” and the, original summons. The next court after the appeal was dock-, eted was in October, 1904. There was also a court in February, 1905, prior to the trial term,. May, 1905, and the de: fendant never made any motion to dismiss for failure to doeket in time, and never made any motion in the cause for any purpose; but made a general appearance in the Superior Court at the trial in person and by attorney,
After the rendition of the judgment, from which the defendant appealed, and after court had adjourned for -the term, it was found that the paper purporting to be a “return to notice of appeal” was not signed by any one.
Geo. U. Butler for the plaintiff.
■ F. II. Gooper for the defendant.
CoNkojr, J.,
after stating the facts: This record presents,' the somewhat remarkable feature of an appeal from a judgment to which there is no exception and no suggestion of any *178error committed, at any stage of tbe trial. Tbe point upon which we are asked to reverse tbe judgment was not made below, and tbe fact upon wbieb tbe motion is based was not known to counsel until after tbe judgment was rendered and the court adjourned. To meet this condition tbe defendant’s very ingenious counsel insists that tbe failure of tbe justice to sign tbe return on appeal deprives tbe Superior Court of any jurisdiction to bear or determine tbe case; tbat tbe proceedings bad in tbat court arc absolutely void. We cannot concur with this view. It is not to be questioned that the Superior Court lias no other than appellate jurisdiction. The appeal perfected by notice and the payment of tbe justice’s fee, takes tbe case into tbe Superior Court without any further action on tbe part of tbe appellant. If tbe justice fails to discharge bis duty to make bis “return of tbe appeal” be may be compelled to do so by attachment, and if tbe return be defective, tbe judge may direct a further or amended return. Code, sections 878, 879. It will be observed tbat the return to be made is “of the appeal,” clearly showing tbat it constitutes no essential element in the appeal, but simply a statement of what was done in tbe inferior court. It would be trifling with tbe administration of justice to permit an appellant who bad done everything required of him to take and perfect an appeal, to be deprived of his right after a trial in tbe appellate court because of an inadvertent failure of tbe justice to sign his name to “the return of tbe appeal.” If tbe attention of the court had been called to tbe omission, it would have summoned the justice and permitted him to sign tbe return at any time during the trial or even after judgment. If either party was not content with tbe return as made, tbe court, upon motion, would have directed a “further or amended return,” as provided by section 879. There is no merit in the defendant’s contention, and the judgment must be
Affirmed.