#### THOMAS THOMPSON v. LYNCHBURG NOTION COMPANY.

(Filed 20 November, 1912.)

1. Justices’ Courts — Nonresidents — Attachment — Publication of Summons — Motions After Judgment — New Trial — Superior Court — Appeal and Error.

Judgment having been rendered in proceedings in attachment, in a court of a justice of the peace, against a nonresident defendant, who thereafter promptly but unsuccessfully moved in that *520court for a rehearing upon affidavits setting forth a meritorious defense, the defendant appealed to the Superior Court, which granted the motion, and plaintiff appealed to the Supreme Court: Held, the only question presented is the correctness of the ruling on the motion to rehear.

2. Justices’ Courts — Nonresidents—Service by Publication — Judgments — Motions—New Trial — Interpretation of Statutes.

The provisions of Revisal, sec. 449, which permits a nonresident defendant, upon whom personal service has not been made, to defend an action after judgment has been rendered therein, under certain prescribed conditions, are construed with reference to other sections of the Code of Civil Procedure, and thus considered with sections 448 and 430, it appears that they are made to apply to actions in the Superior Court.

3. S'ame — Appeal—Superior Courts — Trial de Novo — Practice:

The sections of Revisal regulating procedure before justices of the peace, being particularly sections 1473, 1474, 1475, which make the general provisions of the chapter applicable, do not confer on a nonresident defendant the right to a rehearing, or, which is the same thing, a new trial, in the justice’s court after judgment, upon failure o’f personal service and a good defense shown; and the remedy is that given by Revisal, sec. 1491, providing for an appeal, so that the action may be heard de novo in the Superior Court, where he will be permitted to interpose his defense.

Appeal by plaintiff from Lame, J., at May Term, 1912, of IREDELL.

On 27 February, 1912, the attorney of the plaintiff wrote the following letter to the defendant:

Lynchburg NotioN Company,

Lynchburg, Va.

Gentlemen :■ — Mr. Thomas Thompson has placed his account against you in my hands for collection. He has shown me all your correspondence and a copy of his, together with a copy of your contract with him. You owe him to date, for salary, $182.50, and $15 expenses to Lynchburg to see you, at your request. Now, unless this is adjusted at once, we shall proceed to take legal, steps to have your trunks and their contents converted and the money applied to the payment of this debt. The contract is a fraud on its face, and I feel sure will,be so treated *521by our courts. Let me bear from you at once, else we shall deem that you desire us to take legal steps to protect our rights.

There is no evidence of any reply to this letter, or of any inquiry made by the defendant in regard to it.

On 8 March, 1912, the plaintiff caused the summons in this action and a warrant of attachment to be issued before a justice of the peace, to-recover $197.50.

The summons and warrant of attachment were served on the defendant by publication, which was complete on 11 April, 1912, on which last day judgment was rendered in favor of the plaintiff, he having made proof of his claim.

On 27 April, 1912, the defendant caused the following notice to issue and to be served on the plaintiff: “You will take notice that on 7 May, 1912, the defendant will move the court for a rehearing in the above entitled matter, for the reasons set forth in its application, which is hereby attached and made a part of this notice.”

The application referred to in the notice was duly verified, and if the facts stated therein are true, they constitute a meritorious defense to the action.

The justice heard the motion 'on 7 May, 1912, and denied the same, and the defendant appealed. On the hearing of the appeal in the Superior Court, his Honor rendered the following judgment:

“This cause coming on to be heard at this term of the court, upon motion of the defendant for a new hearing, made before O. Y. Toils, Esq., which motion was denied-by the said justice of the peace, and an appeal by the defendant to the Superior Court, when the same was heard, upon the findings of the following facts: That Thomas Thompson instituted an attachment proceeding against the property of the defendant, the Lynchburg Notion Company, before C. Y. Toils, justice of the peace of Iredell County, North Carolina, which summons was dated 8 March, 1912, and the property of the defendant under the warrant of attachment issued on said date was attached, and upon affidavit of the plaintiff, service of summons was made .by publication, as required by statute.

*522“On 11 April, 1912, said cause was beard by tbe justice, and judgment rendered against tbe defendant for tbe sum of $197.50 principal, and tbe cost of tbe action.

“On 27 April, 1912, tbe defendant gave tbe plaintiff notice tbat on 7 May, 1912, be would move tbe court for a rebearing of tbe cause, and on said date said motion was made, a rebear-ing was denied tbe defendant, whereupon it appealed to tbe Superior Court. Tbe court finds as a fact tbat tbe defendant in tbe cause bad no actual notice of tbe pendency of said attachment proceeding until after rendition of said judgment, and soon after tbe rendition of tbe judgment aforesaid, be gave notice above referred to. Tbe defendant also, in its motion, contended tbat it bad a good and meritorious defense to said action, which is fully set forth in bis application, and made a part of tbe findings thereto. Tbat on .... day of., 1912, a letter was written by plaintiff’s attorney to tbe defendant, a copy of which, marked Exhibit ‘A,’ is hereto attached and made a part of this finding.

“Upon tbe foregoing findings of facts, it is adjudged tbat tbe defendant is entitled to a rehearing, and tbe cause is remanded to tbe justice of tbe peace, with direction tbat tbe case may be reopened, and the defendant be allowed to answer, and the case beard upon its merits.

“It is further ordered that tbe execution upon tbe judgment aforesaid be and tbe same is stayed until tbe final determination of said cause.”

Tbe plaintiff excepted and appealed.

Zeb. V. Turlington for plaintiff.

W. D. Turner for defendant.

Allen, J.

This action was commenced before a justice of tbe peace to recover $197.50, and tbe service of tbe summons was by publication.

Tbe defendant did not appear on tbe return day, and judgment was rendered against it, and thereafter, tbe time not being stated, having received notice of tbe judgment, it moved before tbe justice for a rehearing. Tbe motion was denied, and tbe defendant appealed to tbe Superior Court. In tbe Superior *523Court the motion was allowed, and the plaintiff appealed to this Court. This brief summary of the facts is given for the purpose of showing that the only question before us is the correctness of the ruling upon the motion to rehear. Finlayson v. Accident Co., 109 N. C., 201; Clark v. Manufacturing Co., 110 N. C., 112.

In the Clark case the Court says: “The defendant is a nonresident corporation; it was not served with process, and did not appear and answer at the trial before the justice. It had the right to appeal after notice of the judgment. The Code, 876. It appears, however, that the defendant attempted to appeal, not from the judgment generally, but by a limited notice of appeal in the nature of a special appearance. We know of no authority or reason for such practice. An appeal must be from the judgment rendered. If, after the judgment, the defendant, appearing specially for the purposes of the motion, had moved to set aside the judgment for defective publication, and the motion had been denied, an appeal would have carried up only that ruling. Finlayson v. Accident Association, 109 N. C., 196.

The motion of the defendant is made under section 449 of the Eevisal, which provides: “The defendant against whom publication is ordered, or who" is served under the provisions of the preceding section, or his representatives, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action; and, except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, be .allowed to defend after judgment, or at any time within one year after notice thereof, and within five years after its rendition, on such terms as may be just; and if the defense be successful and the judgment or any part thereof shall have been collected or otherwise enforced, such restitution may thereupon be compelled as the court may direct; but title to property sold under such judgment to a purchaser in good faith shall not be thereby affected.”

This section is a part of the Code of Civil Procedure, and refers primarily to 'actions in the Superior Court, the summons *524of wbicb “publication is ordered,” or which, is served as provided in “the preceding section” (Revisal, sec. 448), being one which runs in the name of the State, and is signed by the clerk of the Superior Court. Revisal, sec. 430.

We must then turn to the sections of the Revisal regulating procedure befpre justices of the peace, to see how far the provisions of the Code of Civil Procedure are made applicable to such procedure, and when we do so we find three sections referring to the subject:

Section 1473: “The chapter on civil procedure, respecting forms of actions, parties to actions, the time of commencing actions, and the service of process, sháll apply to justices’ courts.”

Section 1474: “The chaiiter on civil procedure is applicable to proceedings by attachment before justices of the peace, in all cases founded on contract -wherein the sum demanded does not exceed $200, and where the title to real estate is not in controversy.”

Section 1475: “The chapter on civil procedure is applicable, except as herein otherwise provided, to proceedings in justices’ courts concerning claim and delivery of personal property, and arrest and bail, substituting the words 'justice of the. peace’ for 'judge,’ 'clerk,’ or 'clerks of the court,’ and inserting the words 'or constable’ after 'sheriff’ whenever they occur.”

The only one of these that can by any possibility include section 449 of the Revisal is the first, and that refers only to “forms of actions,” “parties to actions,” “times of commencing actions,” and “service of process,” which falls short of the relief provided in section 449, which relates to judgments after the process has been served.

We conclude, therefore, that the remedy of the defendant must be found elsewhere in the Revisal.

It is true that in Turner v. Machine Co., 133 N. C., 381, an appeal was entertained from a motion to rehear made before a justice, but the right to this remedy was not considered, and it was unnecessary to do so, because it was held that the defendant had lost the right to any relief by his negligence.

*525It was, however, strongly intimated in that ease that a letter not so insistent as tbe one written by tbe attorney of tbe plaintiff in tbis, was sufficient to put tbe defendant on notice that an action would be instituted, and to require investigation; but wbat is there said must be considered in connection witb the facts, it appearing tbat an agent of tbe defendant knew of tbe pendency of tbe action, and tbat no motion was made until about five months after tbe rendition of tbe judgment, and we do not rest our decision on tbis ground.

When we look to tbe procedure prescribed, we find first tbat “a new trial is not allowed in a justice’s court in any case whatever, but either party dissatisfied witb tbe judgment in such court may appeal therefrom to tbe Superior Court” (Revisal, sec. 1489), “tbe purpose (of which) seems to have been to prevent parties from using their right to a new trial in an intermediate nisi prius court, as a means of causing useless delay and subjecting tbe successful party, meantime, to tbe risk of losing tbe fruits of bis victory” (Ballard v. Gay, 108 N. C., 546), and “to limit tbe control of justices over their own judgments within a brief period of time.” Guano Co. v. Bridgers, 93 N. C., 441. This section (Revisal, sec. 1489) is very near, if not a positive prohibition upon a motion to rehear when tbe summons has been served regularly, as in tbis case, as there is only a difference in name between a motion to rehear and a motion for a new trial.

Tbe statutes, however, provide a remedy. If tbe judgment is rendered in tbe absence of tbe defendant, and tbe process is defective, or there is tbe appearance of service when in fact none, tbe defendant may move before tbe justice to set. tbe judgment aside (McKee v. Angel, 90 N. C., 62; Whitehurst v. Trans. Co., 109 N. C., 344), or if tbe process is regular and has been served personally, and tbe absence of tbe defendant has been caused by sickness, excusable mistake, or neglect, be may move for a rehearing, as provided in Revisal, sec. 1478, but “if tbe judgment is rendered upon process not personally served, and tbe defendant did not appear and answer, be shall have fifteen days, after personal notice of tbe rendition of tbe judgment, to serve tbe notice of appeal.” Revisal, sec. 1491.

*526Tbe last section fits tbe case of tbe defendant, and amply preserves and protects bis rights, as upon appeal tbe trial will be de novo, and as be bas bad no opportunity to plead before tbe justice, be will be permitted to enter any defenses.

We are, therefore, of opinion that tbe defendant was not entitled to a rehearing, and that there is error.

Reversed.