#### A. B. DRAFTS v. JAMES SUMMEY and His Wife, CAROLINE SUMMEY.

(Filed 4 December, 1929.)

Justices oí the Peace E a — Where appeal from justice’s court has not been docketed according to C. S., 660, dismissal is proper.

Where an appeal from the justice of the peace has been dismissed in the Superior Court for failure to docket the appeal therein as required by C. S., 660, the judgment of the Superior Court will be sustained by the Supreme Court on further appeal thereto. As to whether the magistrate’s judgment is void on its face is not presented or decided on this appeal.

Appeal by defendants from Finley, J., at April Term, 1929, of HeNbersoN.

Affirmed.

This action for the summary ejectment of defendants from land described in the affidavit filed by plaintiff, was begun in a, court of a justice of the peace of Henderson County on 15 December, 1928.

Plaintiff alleged that defendants went into possession of said land as his tenants at will, and that their term had expired. Defendants denied the tenancy. They alleged that the court was without jurisdiction of the action, for that the title to the land was involved therein. The court found, as appears from its judgment, that this allegation is not bona fide, and that plaintiff is entitled to the possession of the land.

From judgment for the plaintiff rendered on 22 December, 1928, defendants gave notice of their appeal to the Superior Court of Henderson County. They failed to docket said appeal at the next term of said court, which convened on 14 January, 1929. Upon the docketing of the appeal at the term of said court which began on 29 January, 1929, plaintiff moved that same be dismissed. This motion was allowed.

From judgment dismissing the appeal, defendants appealed to the Supreme Court.

*70 Ewbanhs, Whitmire & Weeks for plaintiff.

Geo. M. Pritchard, McKinley Pritchard and Reynolds G. Florance for defendants.

Per Oubiam.

The judgment dismissing defendants’ appeal from the judgment of the court of the justice of the peace to the Superior Court of Henderson County is affirmed. C. S., 660. Barnes v. Saleeby, 177 N. C., 256, 98 S. E., 708. Defendants having failed to docket their appeal as required by statute, plaintiff’s motion to dismiss said appeal was properly allowed. Whether or not the judgment of the justice of the peace in favor of plaintiff and against the defendants, is void on its face, is not presented or decided on this appeal. We decide only that there was no error in the judgment dismissing the appeal from the justice of the peace. The judgment is

Affirmed.