#### D. L. WHITE v. AMERICAN PEANUT COMPANY.

(Filed 18 March, 1914.)

1. Courts, Justice of the Peace — Appeal—Trial de Novo — Scope.'

An appeal from a court of a justice of the peace comprehends in its scope a new trial of the whole suhject-matter of the action (Revisal, secs. 607, 608, and 609), and any determination, by the mágistrate of an incidental question involved therein, though not directly appealed from, is, when relevant and necessary, to be considered and determined by the appellate court.

2. Same — Special Appearance — Process — Service — Corporation— Agent..

The trial judge should find the facts upon which he, upon special appearance of the defendant for the purpose, dismisses an . action for the want of proper service of process; and when it appears on appeal that the action commenced in a magistrate’s court, and service of process had been attempted upon the alleged agent of a-corporation and upon the Secretary of State (Revisa’l, sec. 124S), and the judgment of the magistrate was that service on the Secretary of State was a valid service and that on the agent was insufficient, which latter ruling was reversed in the Superior Court, it was error in the trial judge to refuse to hear and consider the affidavit tending to show a valid service on the agent, as that was a question also presented and involved in the appeal.

Appeal by plaintiff from Peebles, J., at November Term, 1913, of Bestie.

*133Civil action, beard on appeal from justice’s court, and on motion to dismiss for lack of proper service of process made on special appearance in tbe Superior Court.

There .was judgment- dismissing tbe action on ground stated, and plaintiff, having duly excepted, appealed.

Winston & Matthews for plaintiff.

Gilliam & Davenport, Murray Allen, and W. D. Pruden for defendant.

Hoke, J.

Tbe action was instituted before a justice of tbe peace to recover a sum within bis jurisdiction alleged to be due for a lot of peanuts sold by plaintiff to defendant company, through one J. E. Overton, their agent. Service was had on defendant, through said Overton as agent, and, on return day, defendant, having entered special appearance for the purpose, moved to dismiss on the ground that no jurisdiction of the cause could be obtained by such service. Hearing was continued and an additional summons in cause was issued and attempted service had under-provisions, of the Revisal, 1243, by leaving copy of the summons with Secretary of State.

On return day, 18 July, 1913, defendant, on special appearance, moved to dismiss for lack of proper service on Secretary of State.

The justice sustained motion to vacate a,s to service on Over-ton, and being of opinion that there was valid service under section 1243, overruled motion as to that process; tried the case, giving judgment for plaintiff; and defendant appealed.

On the hearing in Superior Court and on special appearance made, his Honor was of opinion that plaintiff not having appealed from the ruling of the justice in referen.ee to the attempted service on Overton, the agent, was concluded by such action of the justice’s court, and it was not open to him to have same considered, and, on that ground, declined to hear or consider any evidence or affidavits in reference to such service. Plaintiff duly excepted.

Considering the ease, then, in reference only to the attempted service on Secretary of State, his Honor, holding that the court *134bad acquired no jurisdiction to try tbe cause by reason of sucb service, dismissed tbe action, and plaintiff, having duly excepted, appealed.

On these the relevant facts sufficient to a proper understanding of tbe question presented, we must bold there was error in tbe ruling of bis Honor in refusing to bear tbe evidence as to service of process on Overton, tbe agent, and to consider that phase of tbe case.

Our statute in reference to appeals from a justice of tbe peace, among other things, provides -that, on such appeal, “tbe case shall be placed on tbe trial docket for a new trial of tbe whole matter,” and the case should be beard on tbe original papers, and no copy need be furnished, etc. Revisal, secs. 607, 608, 609.

This law, by correct interpretation, requires that, on the bearing, every material matter properly incident to tbe cause then pending and involved in tbe appeal shall be beard and passed upon. In tbe present case thfe substantial question 'presented before tbe justice and involved in tbe appeal was whether that court bad acquired jurisdiction to try tbe case. Tbe justice held that be bad jurisdiction; tried cause, and gave judgment in plaintiff’s favor. On appeal, tbe same general question was presented, whether tbe court bad acquired jurisdiction, and every method involved in that general issue and presented by tbe record was pertinent, and should have been considered in ■ determining tbe main question.

While tbe entry of tbe justice in this respect took tbe form of setting aside service on Overton, having retained jurisdiction and tried tbe cause against tbe company, it amounted to nO more than an expression of tbe justice’s opinion as to tbe efficacy of sucb a service.

These justices of tbe pqace, while they do valuable and satisfactory work in tbe adjustment of causes within their jurisdiction, are often called on to act without expert advice, and, in matters of form, it would give rise to endless complications and seriously tend to impair their usefulness to bold that every .ad*135verse ruling made by tbem and tbe reasons for it would estop .the party affected unless be tben and there excepted and appealed. It is for this reason that our statutes governing appeals from these courts are very broad and liberal in their provisions and should be properly construed and applied in furtherance of the legislative purpose.

It has been held that, in dismissing a cause on special appearance of this character, it is proper for the judge to find the facts, and his Honor having erroneously declined to hear pertinent evidence and to consider and pass upon facts that were relevant to the inquiry, the imperfect finding of facts as made by him, and his judgment .thereon, will be set aside and the cause remanded for further hearing.

Reversed.