#### STATE v. R. Y. McADEN.

(Filed 5 March, 1913.)

1. Courts — Justice of the Peace — Jurisdiction—Words and Phrases —Interpretation of Statutes.

A statute making its violation a misdemeanor, and prescribing a punishment by a fine mot exceeding $50 or imprisonment not exceeding twenty days, “or both,” by the words “or both” takes away the' final jurisdiction of a justice of the peace, and on appeal therefrom the motion of the defendant to quash should be granted in the Superior Court.

2. Courts — Jurisdiction—Justice of the Peace — Constitutional Law —Limitations—Practice.

A statute which attempts to confer on a justice of the peace final jurisdiction where the punishment prescribed therein exceeds the constitutional limitation, is inoperative as to the magistrate’s jurisdiction, except to bind over to the Superior Court, which latter court may then proceed to try the case only upon a true bill of indictment returned by-a grand jury.

Clark, C. J., concurring.

Appeal from Garter, J., at January Term, 1912,'of FeaNK-LIN.

*576The defendant was indicted for violating chapter 445, Laws of 1909, regulating the use of public highways by motor vehicles.

From the verdict of guilty and the judgment, thereon, the defendant appealed.

Attorney-General Biclcett and Assistant Attorney-General Galvert for the State.

W. II. Yarborough, Jr., for the defendant.

BbowN, J.

The defendant was tried and convicted in the justice of the peace court for violating section 18, chapter 445, Laws of 1909, which reads as follows:

> “Any person violating any of the provisions of this 'act shall’ be guilty of a misdemeanor, and any one who shall be convicted thereof, or who shall plead' guilty to any complaint for the violation thereof, shall be punished by a fine not exceeding $50 and costs of prosecution, or by imprisonment not exceeding twenty days, or both.”

Section 19 provides that “All police justices of any city or justices of the peace of any township where any such violation shall occur shall have jurisdiction to hear, try, and pass sentence for any and all violations of any o'f the provisions of this' act.”

The warrant 'in this case was issued by a justice of the peace. The justice adjudged the defendant guilty and impósed a sentence of $10 and costs, from which judgment the defendant appealed to the Superior Court.

In the Superior Court the case was tried de novo upon an amended warrant, without a bill of indictment.

It is plain that under the Constitution the justice’s court had no final jurisdiction, as the punishment prescribed for the offense exceeds the limit fixed by the organic law.

The attempt to give the justice of the peace final jurisdiction is rendered abortive by the addition of the words “or both” at the end of section 18 of the act.

The act conferring final jurisdiction is of no effect unless the punishment prescribed is within the constitutional limitation. The justice had no jurisdiction except to bind over, and *577the Superior Court could proceed to try only upon a true bill of indictment returned by tbe grand jury. S. v. Fesperman, 108 N. C., 770; S. v. Perry, 71 N. C., 523; S. v. Cherry, 72 N. C., 123; S. v. Heidelburg, 70 N. C., 496; S. v. Vermington, 71 N. C., 264; S. v. Hooker, 145 N. C., 581; Connor and Cheshire on Const, of N. C., p. 581.

The point presented by this appeal has been so frequently decided that a further discussion of it is unnecessary.

The motion to quash the proceeding is allowed, and the proceeding dismissed.

Reversed.

Clark, C. J\,

concurs that the' use of the words giving the court power to impose “a fine not exceeding $50, or imprisonment not exceeding twenty days, or both,” deprived the justice of the peace of final jurisdiction, for the extent of the punishment permissible determines the jurisdiction. S. v. Fesperman, IOS N. C., 770.

In S. v. Neal, 120 N. C., 618, it is said: “The case was tried before a justice of the peace, and the defendant appealed. In the Superior Court, a bill of indictment was found by the grand jury and the defendant was tried thereon. Therefore, in any aspect, there was jurisdiction. Whether the court acquired it by the appeal, or had original jurisdiction by the indictment, it is immaterial to decide.” In this case, on the trial in the Superior Court on appeal, the defendant did not raise the objection that there should be an indictment found, but, on the contrary, merely asked for a bill of particulars,. which was furnished. This being merely a misdemeanor, there is no reason why a defendant should not be allowed to “waive a bill,” as we know is not unusual practice on the circuit. If the defendant does not desire an indictmenit, and the offense is a petty misdemeanor, there can be no cause why he should be subjected to the costs and delay attendant thereon. It is not unusual nor reprehensible practice, and no good reason can be given against it.

The law is not beyond being modernized by a little everyday common sense. The persistent tendency of the age is to *578render law and its practice and procedure more an institution of to-day and to give less beed to methods of procedure which, if ever founded upon good cause, were based upon reasons which long since have ceased to exist.

In this connection, it may be well to observe that when there is an-appeal from a justice in a criminal case, if an indictment-is found, though' the justice had no jurisdiction,-the appeal is not dismissed, but the trial proceeds. There can' be no reason why the same rule should not apply on appeals from the justice in civil actions of which he had no jurisdiction. In such case, in analogy to appeals in criminal actions, the complaint „ should be amended and the action proceed. There can be no reason to dismiss the party, who is already in court, and thereupon send the officer to bring him back- into court. This has been discussed in Unitype Co. v. Ashcraft, 155 N. C., at p. 71, and in Wilson v. Insurance Co., ib., at p. 177.

In McMillan v. Reeves, 102 N. C., 559, Smith, G. J., says, on a similar proposition:, “It is not material to inquire into the question of the jurisdiction invoked in initiating the suit, since any objection on this account is obviated by the removal of the cause into the Superior Court presided over by the judge.”

In Boing v. R. R., 87 N. C., 363, it was held that where the subject-matter of the action is one of which the court of the justice of the peace and the Superior Court have concurrent jurisdiction, and the case is carried by appeal to the Superior Court, the latter will retain jurisdiction, though the proceeding in the court of the justice of the peace was void for irregularity. The ground is that the case having gotten into the Superior Court, which has jurisdiction, the notice of appeal had the same efficacy as the service of a summons in bringing the defendant into court.

As far back as West v. Kittrell, 8 N. C., 493, it was held that where a cause was carried to the Superior Court from a lower court the former would retain jurisdiction if it were a subject-matter of which the Superior Court would have had jurisdiction, if the action had been originally instituted in that court.

The sole object in serving a summons is to give the defendant notice to come into court. "When he has had a trial, on a bona *579 fide mistake of jurisdiction by tbe plaintiff, before a justice of tbe peace, and tbe case is tried on appeal in tbe Superior Court, tbe defendant bas really bad a more sufficient notice, and is better prepared to try, than if be bad originally been served with summons to appear in tbe Superior Court. There can be no good end served by dismissing an action tbus brought into tbe Superior Court by appeal, and requiring tbe defendant to be again brought into tbe same court by tbe service of a summons, to try tbe same case. Such restricted views of tbe function of a court have disappeared in all other like instances.

Formerly, if an action was brought in a wrong county, or erroneously at law when it should have been in equity, or vice versa, or if begun before tbe clerk when it should have been begun in tbe Superior Court, tbe action was dismissed. Now in all these cases tbe case proceeds to trial. In tbe first named case there is merely a transfer to tbe proper court, if objection is made, but not otherwise. In tbe last case, tbe Superior Court having jurisdiction of tbe subject-matter proceeds with tbe trial as if tbe cause had originally been instituted therein, though tbe other court wherein it began bad no jurisdiction.

Tbe same common-sense method should be applied to appeals from a justice of tbe peace in civil actions, at least whenever tbe judge is of opinion that through a bona fide mistake of tbe plaintiff as to jurisdiction it was erroneously begun before tbe justice. Tbe object of tbe law is more and more clearly seen to be tbe administration of justice, without unnecessary regard to technicalities or fine distinctions as to matters of pleadings. We also certainly should not see tbe spectacle of parties being turned out of court to be brought back into tbe same court to litigate tbe same matter. Tbe additional exaction of tbe added delay and cost being unnecessary, such methods cannot commend themselves to our judgment.