The matter assigned for error in this case is the same as in the case between the same parties (ante, 91), except that in this case the record does not show that the defendants below moved in the county court to be allowed to enter pleas and have the same transmitted to the Superior Court for trial.
The Superior Court decided that there was no error in the judgment of the county court, and ordered a procedendo, from which the plaintiff in error appealed to this Court.
In this Court it was insisted that the provision in chapter 29, section 5, Rev. Code, requiring the county trustee to move for judgment "at the first court held for his county after the first day of January in each and every year," meant the first court having jurisdiction of the *Page 74 subject-matter; and as this proceeding involved matters of fact, and jury trials had been abolished by the special statute for Richmond County, the county court had no jurisdiction, and the judgment therein entered is void. In this cause, the plaintiffs, who were defendants in the county court, so far as the record shows, did not move to be allowed to enter pleas or to make up issues of fact to be tried by a jury; (96) it therefore differs from the case between the same parties in which an opinion is filed at this term (ante, 91). The only question presented is as to the jurisdiction of the county court of Richmond.
For the purpose of this question, it may be conceded that a motion against the sheriff and his sureties on his bond stands on the same footing as an action on the bond, the only difference being that the proceedings on the motion are to be summary, the writ, declaration, and formal mode of proceeding being dispensed with, to avoid unnecessary delay. So, the question turns on the construction of the statute, chapter 29, section 5.
It is contended for the plaintiffs in error that by this statute the motion is to be made by the trustee at the first court (having jurisdiction) held for his county after the first day of January in every year; that as jurisdiction is taken from the county court of Richmond by an act relating to that county, passed in 1814, in all cases where a jury may be necessary, it follows that the county court could not entertain the motion, and the judgment is void for the want of jurisdiction.
We do not concur with the counsel as to the construction of the statute. Taken in connection with the other sections, it is evident that the statute intended that all of these matters in respect to the county revenue should be instituted in the county courts; by section 1, the justices of the county court are to appoint a county trustee; by section 5, the trustee is to make a motion against the sheriff at the first court held for his county after, etc.; by section 6, the trustee shall settle, etc.; where there is no trustee, the court shall settle with their sheriff, etc.; by section 7, the court of pleas and quarter sessions shall allow the trustee reasonable pay, etc., and by section 8, at the first court which shall be held after 1 January in every year, the trustee shall make settlement with the court, etc. The whole shows that the court meant is the county court, and section 5 shows "the motion shall be made by the county trustee at the first term of said court which shall be held (97) for his county after, etc. *Page 75
It is clear, we think, that the motion must be made in the county court. But it is asked, What is to be done in those counties where the county court cannot try jury cases, and no jury is in attendance? The reply is obvious: Wherever issues of fact are made up the case must be transmitted to the superior courts, as in the case of the probate of wills, or after issues are made up on proceedings under a ca. sa., or in a bastardy case, the principle being that where, by law, a matter is to originate in the county court, that court has exclusive jurisdiction in the first instance, notwithstanding its jurisdiction for trying issues of fact is taken away by statute; and it is only after issues of fact are made up that the case is to be transmitted to the Superior Court by order of the county court or bycertiorari. See the case of Harris v. Hampton, 52 N.C. 597, in which S.v. Sluder, 30 N.C. 487, and Fox v. Wood, 33 N.C. 213, are referred to, and the question in regard to nonjury county courts is fully explained.
PER CURIAM. Affirmed.