411. Judgments, not dormant, when.

Any late sheriff, or other officer, having executions in his hands, and failing to make due return thereof, and to pay the proceeds as herein prescribed, shall in each case forfeit and pay to any person grieved, one hundred dollars, to be recovered on motion to the court.

412.-Ordinance of 14th of March, 1868, not affected.

Nothing in this act contained shall affect or impair any right given by an ordinance of the Convention of this State, entitled, "An ordinance respecting the jurisdiction of the courts of this State," ratified on the fourteenth day of March, 1868, in the cases to which it is applicable.

{ 413.-Jurisdiction of Supreme Court.

The Supreme Court shall have jurisdiction to review upon appeal, any decision of the courts below, upon any matter of law or legal inference; but no issue of fact shall be tried before this court; and the court shall have power to issue any remedial writs necessary to give it a general supervision and control of the inferior courts. [Constitution, Article IV, Section 10.]

414.-Cases-how taken to the Supreme Court.

Cases shall be taken to the Supreme Court by appeal as provided in Chapter I, of Title XIV of this Code of Civil Procedure.

415.-Claims against the State.

The Supreme Court shall have original jurisdiction to hear claims against the State, but its decision shall be merely recommendatory; no process in the nature of exe

cution shall issue thereon; they shall be reported to the next session of the General Assembly for its action. [Constitution, Article IV, Section 11.]

Boner v. Adams, 65-639.

416.-Manner of prosecuting claims against the State.

Any person having any claim against the State, may file his complaint in the office of the clerk of the Supreme Court, setting forth the nature and grounds of his claim; he shall cause a copy of his complaint to be served on the Governor, and therein request him to appear on behalf of the State and answer his claim; the copy shall be served at least twenty days before application for relief shall be made to the court. In case of an appearance for the State by the Governor, or any other authorized officer, the pleadings and trial shall be conducted in such manner as the court shall direct. If an issue of fact shall be joined on the pleadings, the court shall transfer it to the Superior Court of some convenient county, for trial by a jury, as other issues of fact are directed to be tried; and the judge of the court before whom the trial is had, shall certify to the Supreme Court, at its next term, the verdict, and the case, if any, made up and settled, as prescribed in section three hundred and one (§ 301) of the Code of Civil Procedure.

If the State shall not appear in the action by any authorized officer, the court may make up issues and send them for trial as aforesaid. The Supreme Court shall, in all cases, report the facts found, and their recommendation thereon, with the reasons thereof, to the General Assembly at its next term.

Bledsoe v. State, 64-392; Boner v. Adams, 65-639; Henry v. State, 68-465; Clements v. State, 76-199; same case, 77-142.

ACT SUSPENDING THE CODE OF CIVIL PROCEDURE IN CERTAIN CASES.

[Acts of 1868-'69, Chapter 76, amended by Acts of 1870-71, Chap. 42, and 1872–73, Chapter 14.]

That all civil actions shall be commenced by the issuing

a summons.

A suit to recover possession of land is a civil action, and not a special proceeding. Therefore, the summons (by the Act of 1868-'69, Chapter 76,) is returnable to term time, and not before the clerk. Woodley v. Gilliam, 64-649.

The appointment of a trustee by a Judge of Probate, in cases where the former trustee has died, removed from the county, or became incompetent, cannot be done on an ex parte motion or petition. The application for such appointment is in the nature of a civil action, and all persons interested must be made parties, and have full time and opportunity to set up their respective claims. Guion v. Melvin, 69–242.

9.-The summons.

The summons shall run in the name of the State, be signed by the clerk of the Superior Court having jurisdiction to try the action, and under the seal of the court, and shall be directed to the sheriff of the county in which the defendant resides or may be found. It shall be returnable to the regular term of the Superior Court of the county where the plaintiffs, or one or more of them, or the defendants reside, and shall command the sheriff, or other proper officer, to summons the defendant to appear at the next ensuing term of the Superior Court and answer the complaint of the plaintiff, and shall be dated on the day of its issue. The officer to whom the summons is addressed shall note on it the day of its delivery to him, and shall execute it at least ten days before the beginning of the term to which it shall be returnable, and shall return it on the first day of the term.

The "Act suspending the Code of Civil Procedure in certain cases," is not unconstitutional in requiring writs in civil cases to be "returned to the regular term of the Superior Court," &c., instead of the clerk's office. McAdoo v. Benbow, 63-461.

Civil actions must (by the Act of 1869-'69, Chapter 76) be issued by a clerk, and made returnable in term time. McArthur v. McEachin, 64-72.

Under the "Act suspending the Code of Civil Procedure in certain cases," the summons in a civil action is to be returned to the term: Therefore, an action in which the summons was returnable before the clerk, upon demurrer by the defendant, will be dismissed, and a provisional warrant of attachment, (issued because defendant was removing his goods, &c.) although properly returnable, will follow the fate of the action. Jones v. McClair, 64–125.

The Clerk of the Superior Court of one county has no right to issue a summons returnable to the Superior Court of another county; but irregularity of service is waived by an appearance and answer in Moore v. N. C. R. R. Co., 67-209.

bar.

Summons issued after the passage of this act, returnable before the clerk, is not void but irregular, and may be set aside on motion. Woody v. Jordan, 69-189.

Sections 315 and 325 of the Code are still in force, notwithstanding the Act of 1868-'69, Chapter 76, suspending the Code in certain cases, and controversies may still be submitted without action, and judgment confessed according to them. Hervey v. Edmunds, 68-243. 3.-Plaintiff to file complaint, &c.

The plaintiff shall file his complaint in the clerk's office on or before the third day of the term to which the action is brought, otherwise the suit shall, on motion, be dismissed by the court at the cost of the plaintiff.

The "Act suspending the Code of Civil Procedure in certain cases," does not repeal § 116, C. C. P., so as to allow of "pleas" without verification. Haywood v. Bryan, 63—521.

4.-Defendant shall appear.

The defendant shall appear and demur, plead or answer at the same term to which the summons shall be returnable, otherwise the plaintiff may have judgment by default, as is now allowed by law.

The word "plead" used in the Act of 1868-'69, chap. 96, sec. 4, must be regarded as an inadvertence, and was not intended to change the Code system. Oates v. Gray, 66-442.

25.-Issue to stand for trial.

The plaintiff shall join in the demurrer or reply to the answer at the same term to which such demurrer or answer

may be filed and that the issues, whether of law or fact, shall stand for trial at the next term succeeding the term at which the pleadings are completed.

{ 6.—Summons in hands of officers to be returned, &c. [Amended by Acts of 1870-'71, Chapter 42, Section 6.]

That all writs of summons in civil actions now in the hands of the sheriff or clerk, shall be returned by said officers to the next term of the Superior Court, and such writs, together with all writs of summons in civil actions heretofore returned in which no final judgment has been rendered, shall be placed by the clerk on the docket of the Superior Court at the next ensuing term, and the pleadings in such actions shall be conducted according to the rules prescribed in this act: Provided, That all civil actions in which issues have been joined, shall stand for trial at spring term eighteen hundred and seventy-one.

{7.-Executions issued—how tested and returned. [Amended by Acts of 1870-'71, Chapter 42, Section 7.]

All executions issued, or judginents in civil actions shall be tested as of the term next before the day on which they issued, and shall be returnable to the term of the court next after that from which they bear test; and all executions now in the hands of any sheriff, issued from any Superior Court, shall be returned to the next term of said court.

The Act of Assembly, 1870-'71, chap. 42, by which executions issued on judgments in civil actions, are required to be tested as of the term next before the day on which they are issued, is merely directory, and its omission does not vitiate the process. Bryan v. Hubbs, 69-423.

The provision for docketing a justice's judgment in the office of the Clerk of the Superior Court of the county, so as to make it a judgment of the Superior Court, from the time of its being docketed, is not repealed by the Act of 1868-'69, Chapter 76, entitled "An Act suspending the Code of Civil Procedure in certain cases." Bates v. Bank of Fayetteville, 65–81.

By the effect of the statute which suspends the Code of Civil Procedure, the proceedings of the latter as to docketing such judgments as are taken in the court where docketed, are suspended; and the 18th Rule of Practice laid down by the Supreme Court (63-669) operates to make all judgments during any term relate to the first day of such term. Norwood v. Thorp, 64-682.