#### FIDELIO SLUDER vs. WILLIAM BARNES.

After judgment in tlie County Court, tlie defendant obtained a certiorari, on the ground that the County Court had no jurisdiction of the cause. On the return of the writ, the defendant pleaded to the jurisdiction of the Superior Court, because the County Court had no jurisdiction: — Held, That the plea was bad; the proper course being to apply for leave to put in a plea to the jurisdiction of the County Court.

The defendant, Barnes, had issued an attachment against the plaintiff, Sluder, for the sum of one hundred dollars due by bond at interest, and the same was made returnable before a Justice of the Peace ■, but was by the Justice returned to the County Court *470of Buncombe county; and after due advertisement, according to the order of said Court, a judgment by default final was entered up against the plaintiff, according to the specialty sued on, and condemning a tract of land which had been levied on to-the satisfaction of defendant’s debt; and an order of sale was accordingly issued thereupon.

At Fail Term, 1849, of the Superior Court of Buncombe, Sluder filed his petition, praying for a writ of false judgment and certiorari, to have the proceedings in said County Court brought up to the Superior Court, and also a writ of supersedeas issued to the Sheriff, commanding him to desist from selling the land under the venditioni exponas in his hands, and alleging among other things, divers irregularities in the said proceedings by attachment — that the same was improperly and corruptly procured to be issued — that he owed the defendant nothing- — and that the County Court had no jurisdiction of the cause, the same not having been made returnable thereto. The writs prayed for were granted by his Honor, Judge Ellis, then presiding, and upon the record being sent up to the Superior Court, at a subsequent Term, his Honor, Judge Battle, on motion of the defendant, directed the case to be placed upon the trial docket; and at Spring Term, 1853, the defendants filed the following plea in abatement:—

“ And the said William Barnes, in his own proper person, comes and defends, rfcc., and says that this Court has no jurisdiction of this suit, because the County Court of Pleas and Quarter Sessions, of said County, to which the same was returned, had no jurisdiction as to tiie cause in this form, nor pleas of debt in any form, and because the process was not returnable to said County Court, and that the said County Court ought not to have assumed jurisdic-diction of said cause, by entering the judgment in that Court, and this Court should not take or exercise jurisdiction in this case; because the process is not returnable to this Honorable Court, or otherwise properly constituted a suit in this Court: Wherefore, he prays that the said suit or writ of the said Fidelio Sluder may be quashed and abated,” &c.

To the foregoing plea the plaintiff demurred, and his Honor, Judge Dick, before whom the same was argued, at the Special

*471Term of said Court, in June last, gaye judgment sustaining the demurrer and requiring the defendant to answer over; from which judgment the defendant appealed.

JV. W. Woodfin and Bynum, for the defendant.

J. W. Woodfin and J. Baxter, contra.

Pearson, J.

It is not a little singular, that after this case was taken to the Superior Court, upon the petition of the defendant, and was transferred to the trial docket., upon his motion, he should then fde a plea to the jurisdiction of the Superior Court, and insist that “ that Court should not take or exercise jurisdiction.” It may be well for him that the plea cannot be sustained; for possibly in that event, the proper order would have been a procedendo to the County Court.

But the plea cannot be sustained; and the judgment of re-spondeat ouster must be affirmed. The defendant will thus have an opportunity of pleading in chief, and putting the case upon its merits.

Instead of a plea to the jurisdiction of the Superior Court, the defendant ought to have put in a plea to the jurisdiction of the County Court; whereas, he merely refers to the want of jurisdiction in the latter, by way of argument, to sustain the plea to the j urisdiction of the former.

By way of explanation : — A certiorari answers the purpose of an appeal from the County to the Superior Court. Suppose the defendant appears to an action in the County Court, and pleads to the jurisdiction, and there is an appeal to the Superior Court— upon what does the trial take place in that Court? So, here, although the defendant did not appear to the action, and for that reason could not appeal, and had to bring the case up by certio-rari, yet it stands in the Superior Court, as if it had been brought up by appeal, and the proper course was for the defendant, when he got into that Court, to move for leave to put in his pleas, on the ground that he he had no opportunity of doing so in the County Court. His motion would have been allowed in the same way as, after an appeal, defendants are allowed to add or to change pleas. The issue would then have been upon the *472want of jurisdiction in the County Court, and the defendant would not have been involved in the dilemma suggested above.

Pee. Curiam. Judgment affirmed.