#### CHARLES F. DUNN et al. v. GEORGE PATRICK.

(Filed 11 October, 1911.)

1. Appeal and- Error — Appeal from Justice’s Court — Ejectment— Superior Court — Rents and Damages — Measure of Damages— New Trial on One Issue.

On appeal to the Superior Court from a judgment of a justice of the peace in a summary proceeding in ejectment wherein it was determined, under the first issue, that the plaintiff was entitled to the possession of the premises, and, under the second issue, to a certain sum, as rents and damages, the plaintiff is entitled to recover in the Superior Court the rents and damages which have accrued to the date of the trial therein, and it is error for the trial judge to limit the recovery to the amount allowed in the justice’s court. Error as to the second issue alone having been committed, a new trial upon that issue alone is ordered.

2. Appeal and Error — Appeal from Justice’s Court — Ejectment—Su-perior Court — Rents and Damages — Surety—Stay Bond — Meas--ure of Damages.

The surety on a bond to stay execution on appeal from a judgment of a justice of the peace rendered in summary proceedings in ejectment is liable for such rents and profits to the plaintiff as may accrue to the date of the trial in the Superior Court. Revisal, secs. 2008, 2006.

3. Appeal and Error — Appeal from Justice’s Court — Entry of Notice.

In this case the failure of the appellant to enter his appeal from the justice’s judgment within the time prescribed by the statute, Revisal, secs. 1491 and 2008, is considered as not material, in view of the special facts of the case.

*249Appeal by plaintiffs from Peebles, J., at March. Term, 1911, of LENOIR.

The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.

Charles F. Dunn in propria persona.

No counsel contra.

WalKeb, J.

This action was brought under Eevisal, secs. 2001-2011, and is a summary proceeding in ejectment by the plaintiff, as landlord, against the defendant, as his tenant. It appears from the testimony of the plaintiff, the only witness examined, that he leased the land to the' defendant in May, 1909, at 50 cents a week, and that the rent was regularly paid until November of that year, when the defendant, upon demand, refused either to pay rent or to quit the premises. The plaintiff thereupon brought this proceeding against him before a justice of the peace, who, after hearing the ease, gave judgment in favor of the plaintiff for $5.25 and costs. The defendant ap--pealed and gave bond to stay the execution, conditioned that “he would pay any judgment which in this or any other action the plaintiff may recover for rent of the said premises and damages for the detention thereof,” which condition is in accordance with the statute in such cases made and provided, Eevisal, sec. 2008. W. O. Fields is sui’ety on the bond. The case was tried in the Superior Court upon two issues:

1. Are the plaintiffs entitled to the possession of the property described in the complaint? Answer: Yes.

2. What amount, if any, are the plaintiffs entitled to recover of the defendants? Answer: $5.25.

The court instructed the jury that, if they believed the evidence, they should answer the first issue “Yes” and the second issue “$5.25” (the amount of rents to' the time of the justice’s trial), which was accordingly done, and from the judgment upon the verdict the plaintiff appealed, being content with the charge as to the first issue, but alleging error as to the second.

We gather from the record, which is not made up in a regular and orderly way, though sufficiently so for our decision upon the merits of the case, that the defendant did not enter *250bis appeal to tbe, justice’s judgment witbin tbe time prescribed by tbe statute, Revisal, secs. 1491 and 2008; but in tbe view we take of tbe case, tbis is not a material or practical question. We are unable to determine upon wbat ground or for wbat reason tbe court denied tbe plaintiff’s right to an assessment of tbe rents and damages accrued to tbe date of tbe trial. Revisal, sec. 2006, expressly provides for sucb an assessment in tbis bind of proceeding, and directs tbat tbe verdict shall include and the judgment shall be entered for sucb rents and damages, and tbis is, in addition, tbe general rule, regardless of any special statutory provision. Tbis Court said in Morisey v. Swinson, 104 N. C., 555, that "under tbe present method of procedure, rents are recoverable up to tbe time of tbe trial,” and tbis is allowed in order to avoid circuity of action or multiplicity of suits, and so tbat tbe entire controversy, as far as it may be done, will be settled in one action, tbis being in accordance with tbe very spirit and purpose of our Code. See, also, Whissenhunt v. Jones, 78 N. C., 361; Burnett v. Nicholson, 86 N. C., 99; Grant v. Edwards, 88 N. C., 246. Tbe plaintiff duly excepted to tbe erroneous instruction upon tbe measure of damages, and bis exception must be sustained and tbe case remanded for a new trial uiion tbe second issue alone. In other respects tbe verdict will stand until it is completed by a correct finding upon tbat issue. Tbe judgment upon tbe verdict will be entered both against tbe defendant and bis surety for tbe amount assessed. Revisal, sec. 2006.

New trial.-