dissenting: When this case was dismissed by the justice of the peace the appeal brought it into the Superior Court. If the justice erred, the case should have been tried in the Superior Court de novo. If he was correct in dismissing, the case was all the more in the Superior Court by virtue of the appeal, and as that court had jurisdiction of the subject-matter it should have proceeded to try the case on its merits. In this day when there is search for more efficiency in the administration of the courts, there is no reason to dismiss a cause which is in a court which has full jurisdiction of the subject-matter, simply that the plaintiff may issue another process and come back into the very same court. To do so is but to follow the ancient ideas by which if a cause was brought in debt when it should have been in covenant, or in detinue when it should have been in replevin, or in equity when it should have been at law, the plaintiff was dismissed and told to come back into the same court.
On a like appeal from a justice in a criminal action, if the justice did not have jurisdiction, the defendant is not dismissed, but a bill is sent to the grand jury. In the appeal in a civil case, jurisdiction should likewise be retained and a complaint filed.
It is sometimes said that on appeal from the justice the Superior Court acquires only derivative jurisdiction. There is nothing in -the Constitution to that effect and no warrant for the position. The ease if tried on appeal in the Superior Court is tried de novo and in every *356particular as i£ tbe cause bad beeu originally brought to tbat court. Tbe warrant and trial before tbe justice and tbe appeal in tbis case bave given tbe defendant certainly as much notice of tbe nature of tbe case as if a summons bad been served on bim returnable to tbe Superior Court.
Tbe Superior Court is a court of general jurisdiction. Formerly wben an action was br-ougbt before tbe clerk wben it should bave been brought to tbe court at term, tbe action was dismissed, upon exactly tbe same ground tbat it is now sought to oust tbe jurisdiction of tbe Superior Court. Rut tbe Legislature passed tbe statute which is now Revisal, 614, which provides: “Whenever any civil action or special proceeding begun before tbe clerk of tbe Superior Court shall be, for any ground whatever, sent to tbe Superior Court before tbe judge, tbe judge shall bave jurisdiction,” and authorizes bim “to bear and determine all matters in controversy in such action.” Tbe decisions bold tbat tbe judge may make any amendment whatever in such case, and even though tbe proceeding before tbe clerk was a nullity. In re Anderson, 132 N. C., 243; R. R. v. Stroud, ib., 416; Ewbank v. Turner, 134 N. C., 81. Tbis was so, logically, under our system of courts, without the passage of tbe act to correct decisions theretofore to tbe contrary. Tbe same rule, and for tbe same reason, should obtain on appeals from a justice of tbe peace in civil cases as fully as in criminal cases. Tbe Superior Court having general jurisdiction, is seized fully of all cases brought on its docket by appeal, as fully as if they bad originated there, and tbe judge should' have -power to make amendments and try tbe cases as if they bad begun in tbat court.
Tbis matter has been fully discussed in Unitype Co. v. Ashcraft, 155 N. C., at p. 71; Cheese Co. v. Pipkin, ib., at p. 401; S. v. McAden, 162 N. C., at p. 578, and in Sewing Machine Co. v. Bullock, 163 N. C., at p. 547.