McIver v. Seaboard Air Line Railway Co.

Clark, C. J.,

concurs in the opinion of Mr. Justice Brown, except in the intimation in the last paragraph that the plaintiff may be put out of-court for want of jurisdiction and bring a new action in the Superior Court: It is contrary to the spirit of our present system of procedure when a case has gotten in the Superior Court by appeal, or otherwise, to put the plaintiff out of that court which has full jurisdiction of the cause, because of defect of jurisdiction in the lower court, and tell him to come back into the same court in another method. Gui bono shall this be done when he is already in the proper court ?

The Superior Court is a court of general jurisdiction. When a case has been tried in a lower court and gets into that court by appeal, the court is seized of full jurisdiction and should proceed to dispose of the cause -on the'merits. This has been required by statute when the appeal is from the clerk to the Superior Court. The spirit of the Constitution is the same when the appeal is from any other tribunal to the Superior Court. *547It is true, the practice has been usually otherwise, but uot uniformly. McMillan v. Reeves, 102 N. C., 559, and other cases cited in Wilson v. Insurance Co., 155 N. C., at page 177. But such practice, it seems to me, should not be followed.

This point has heretofore been discussed in S. v. McAden, 162 N. C., at p. 575, citing Cheese Co. v. Pipkin, 155 N. C., at p. 401; Unitype Co. v. Ashcraft, ib., at p. 71; Wilson v. Insurance Co., ib., at p. 177. It may be that if the matter is called to the attention of the Legislature appropriate legislation may be had in conformity to the Constitution and the spirit of our present Procedure, as has been done in regard to appeals from the clerk to the Superior Court. Or the Court may some day so hold, for legislation ought not to be necessary under our Constitution.

The present practice in that matter has not been required by any statute or by any provision of the Constitution. It has been merely the following by the courts of the procedure which was very proper under the former system of practice. The Court at any time can refuse to longer follow it, or the Legislature may require that the practice in this respect shall conform to the spirit of our modern procedure.