concurs that the principle which estops a tenant to deny the title of his landlord does not prevent the tenant from assailing the validity of an alleged transfer from the original landlord. Steadman v. *364Jones, 65 N. C., 388; 24 Cyc., 745; 16 R. C. L., 670. And, therefore, there is error entitling the defendant to a new trial for refusing to consider the evidence offered by him tending to show that the plaintiff had not succeeded to the rights of the landlord from whom the defendant had rented the house. But does not concur in the proposition that this action, which came up by appeal from a magistrate, ought to have been dismissed in the Superior Court, and the parties invited to come back into the very court from which they had been dismissed.
This would be in accord with the technical ideas formerly prevailing in the administration of the courts. But under our present system, the case having reached the Superior Court, 'that court should have proceeded to try the case on its merits, without requiring the parties to go out of court, with an invitation to come back again into the same court. An examination of the Constitution will show no basis for the doctrine of “derivative jurisdiction.” The Superior Court having acquired jurisdiction by the appeal, retains it for all purposes, and should proceed to decide the cause upon its merits. This has been often before decided by this Court, though there are some cases to the contrary.
As far back as West v. Kittrell, 8 N. C., 493, it was held that'where a cause was carried to the Superior Court from a lower court, the Superior Court will retain jurisdiction if it were a subject-matter of which it would have had jurisdiction. In Boring v. R. R., 87 N. C., 363, it was held that where the subject-matter of the action was one of which the justice of the peace and the Superior Court had concurrent jurisdiction, on appeal the latter will retain jurisdiction, though the proceeding in a court of a justice of the peace was void for irregularity. The ground given is that the case having gotten into the Superior Court, which had jurisdiction, the notice of appeal had the same efficacy as if the defendant had been brought in by service of summons.
In McMillan v. Reeves, 102 N. C., 559, Smith, C. J., applied to appeals in civil actions the same rule as in criminal proceedings, and says: “It is not material to inquire into the question of jurisdiction in initiating the suit, since any objection on this account is obviated by the removal of the cause into the Superior Court”; saying further, “The court assumed to exercise jurisdiction; did possess it fully over the subject-matter of the action and the parties, and the cause was, in a strict sense, coram judice under the rulings in West v. Kittrell, 8 N. C., 493, and Boring v. R. R., 87 N. C., 360, even without the Laws of 1887, ch. 276, now Rev., 614 (C. S., 637), which sustains the jurisdiction thus acquired.” The Chief Justice further said: “The objection to the jurisdiction has no force unless the proceeding in its entirety is a nullity, and it certainly cannot require argument to combat such contention. *365Peoples v. Norwood, 94 N. C., 167.” In. tbis last ease tbe Court beld tbat where tbe parties were before tbe court, it was sufficient tbougb no summons was served.
In S. v. Neal, 120 N. C., 618, it is said: “Tbe case was tried before a justice of tbe peace, and tbe defendant appealed. In tbe Superior Court an indictment was found by tbe grand jury, and tbe defendant was tried tbereon; therefore, in any aspect, there was jurisdiction. Whether tbe court acquired it by tbe appeal, or bad original jurisdiction by tbe indictment, it is immaterial'to decide.”
When tbe clerk wrongfully takes jurisdiction, and tbe cause, by appeal or otherwise, reaches tbe Superior Court, the-court has jurisdiction, and tbe act of 1887, now C. S., 637, provides tbat tbe judge shall “bear and determine all matters in controversy in such action,” and shall make any amendments whatever, and tbis was beld to be so tbougb the proceeding before the clerk was a nullity. In re Anderson, 132 N. C., 243; R. R. v. Stroud, ib., 416; Ewbank v. Turner, 134 N. C., 81.
The above cases are cited in the concurring opinion in S. v. McAden, 162 N. C., 577, it being added: “The sole object in serving a summons is to give the defendant notice to come into court. When be has bad a trial on a bona fide mistake of jurisdiction by tbe plaintiff, before a justice of the peace, on appeal in tbe Superior Court, he has really had tbe most sufficient notice, and is better prepared to try than if be bad been served with summons to appear in tbe Superior Court.” There can be' no benefit to either party by dismissing tbe action and requiring the defendant to come back into the same court by service of summons.
In the concurring opinion in Holmes v. Bullock, 178 N. C., 380, it is said tbat there is “no basis for tbe doctrine of derivative jurisdiction, which is simply a survival of tbe former idea obtaining by which so many objections were had to jurisdiction.” For instance, if an action was brought in the wrong county it was dismissed because the plaintiff had guessed wrong as to venue, and he had to begin over again with loss of time and considerable expense. So, also, when one brought an action for debt when it should have been in covenant or in detinue and it should have been in replevin, or if be guessed erroneously by using another form of action than tbat which tbe court might deem tbe correct one, he was dismissed with costs, and with loss of time to sue again in the same court, and if he guessed wrong again, he was again dismissed until he guessed right; or if be brought a suit in equity when it should have been an action at law, or vice versa, be went through the same heart-breaking experience to come back into court before the same judge. Now the court simply permits amendment and proceeds to try tbe cause.
There are decisions contrary to the above holding that in appeals in civil cases from a justice a different rule applies from that on appeal *366from a justice in criminal cases, or on appeal from tbe clerk. Tbougb in botb these cases tbe trial court was without jurisdiction, tbe Superior Court proceeds to try them without question. It may be that the Legislature will amend C. S., 637, to apply also to appeals in civil cases from a justice of the peace, for the decisions of the court áre irreconcilable.