#### BEN JONES v. J. J. FOWLER and CITY OF WILMINGTON.

(Filed 12 March, 1913.)

1. Courts — Justices of the Peace — Docketing Appeal — Action Dismissed — Waiver.

When an appeal from a judgment of a justice of the peace is not docketed in the Superior Court in the time prescribed by the statute, it will be dismissed unless the provision is waived by the adverse party, and an agreement which only provides for the custody of the property pending the appeal does not have the effect of a waiver of the time within which the appeal should be docketed.

2. Courts — Justices of the Peace — Presumptions—Jurisdiction—Motions to Dismiss — Judicial Knowledge.

Where a judgment has been obtained in the court of a justice of the peace to recover 300 pints and half-pints of whiskey, the value stated in the summons to be less than $50, the presump-’ tion is that the judgment is valid and that the facts necessary to sustain it exist; and the Supreme Court will not assume that its value is greater than that found, upon a motion to dismiss for want of original jurisdiction in the justice’s court.

Appeal by defendants from Garter, J., at January Term, 1913, of Pendeb.

This is an action to recover 300 pints and balf-pints of whiskey.

The action was commenced before a justice of the peace on 20 February, 1912, and the value of the property is stated in the summons to be less than $50.

Judgment was rendered in favor of the plaintiff by the justice of the peace on 21 February, 1912, and it was then agreed that the defendants should hold the whiskey and bottles until the cause should he finally decided by the higher court.

The defendants appealed, but the appeal was not docketed in the Superior Court until 10 September, 1912, four terms of the Superior Court having intervened between the time the appeal was taken and the docketing of the same.

At Fall Term, 1912, the appeal was dismissed because of delay in docketing, and the defendants excepted and appealed.

*355Tbe defendants move in tbis Court to dismiss tbe action, upon tbe ground tbat tbe Court can take judicial notice that tbe quantity of whiskey sued for is worth more than $50.

No counsel for plaintiff.

II. M. McGlcmmy for defendant.

AlleN, J.

Tbe 'appeal was not docketed in tbe time required by law, and was properly dismissed (Davenport v. Grissom, 113 N. C., 38; Peltz v. Bailey, 157 N. C., 167), unless tbe agreement entered into between tbe parties is a waiver of tbe right to dismiss, and we think it cannot have tbis effect.

It does not purport to deal with tbe right of appeal or tbe time of docketing, and simply provides for tbe custody of tbe property pending tbe appeal.

Tbe motion to dismiss tbe action upon tbe ground tbat tbe value of tbe property is more than $50 cannot be allowed.

Tbe value is stated in tbe summons to be less than $50, and it does not seem tbat tbis was controverted before tbe justice, and tbe justice has rendered judgment in favor of tbe plaintiff.

Tbe presumption is tbat tbe judgment is valid, and tbe facts necessary to sustain it are presumed to exist.

Again, tbe whiskey has no market value in Wilmington, because it cannot be legally sold there, and in tbe absence of a market value, and in tbe face of tbe statement in tbe summons and tbe judgment of tbe justice, tbis Court must decline to bold tbat its intrinsic value is generally known, or that tbe Court has any special expert knowledge upon tbe subject.

Affirmed.