ROLLINS. HENRY. applied and has the right to be made defendant either with or in the place of the tenants. Error. PER CURIAM. Venire de novo. P. ROLLINS and others v. W. L. HENRY. Landlord and Tenant Act -- Appeal from Justice's Court -- Practice. Upon an appeal from a Justice's Court, in an action under the Landlord and Tenant Act, when a third person claiming as landlord of the defendant has been made a party defendant in the Superior Court, and the appeal is dismissed as to the tenant defendant, no writ of possession can issue from the Justice's Court, until the determination of the controversy between the plaintiff and interpleading defendant. CIVIL ACTION to recover possession of Real Estate, tried at Fall term, 1875, of BUNCOMBE Superior Court, before Henry, J. The facts in this case are the same as in the case of P: Rollins v. Ham Rollins, ante. Mr. J. H. Merrimon, for plaintiff. Messrs. Battle & Mordecai and J. G. Martin & Son, for defendant. BYNUM, J. This proceeding was commenced before a Justice of the Peace under the Landlord and Tenant Act and was taken to the Superior Court by appeal of the defendant. At the Fall Term, 1875, of that Court the appeal ROLLINS HENRY. was dismissed upon the motion of the defendant himself. The effect of the dismssal was to remit the case to the Justice's Court, to be there proceeded in under the judgment which had been appealed from. The Superior Court therefore had lost its jurisdiction, nevertheless at the same time that Court awarded a writ of possession to the plaintiff's against the defendant, from which judgement he appealed to this Court. There is error for which a venire de novo must be granted. At the same term at which this appeal was dismissed, R. M. Henry filed an affidavit claiming the land in suit and alleging that this defendant was his tenant and asking to be made defendant as landlord in this and several other like cases. We have determined in the case of Rollins v. Rollins decided at the present term, that R. M. Henry had the right to appear and defend, and that no writ of possession against any of the tenants could be awarded and executed, pending the trial of the issues between the plaintiffs and R. M. fenry, even though judgment by default should be taken against the tenants. It follows that the Justice of the Peace cannot issue a writ of possession upon the judgment in this case unless the plaintiff's shall recover in the actions for the same land wherein the said R. M. Henry is allowed to be made a defendant. Adams on Eject. 239. PER CURIAM. Venire de novo. SLUDER v. ROLLINS. E. SLUDER v. W. W. ROLLINS and others. Judgment-- Vacation of -- Inexcusable Neglect. 1. Where the defendants were in the town in which a court was in session, at which a judgment was rendered against them, and did not communicate the nature of their defense to their counsel or file an answer; Held, that they were guilty of inexcusable neglect and not entitled to have the judgment vacated under C. C. P. § 133. 2. In an application to vacate a judgment, the burden is on the applicant to show a proper ground. (Wallell v. Wood, 61 N. C. 621, cited and approved.) MOTION, to vacate a Judgment taken by default, made by the defendants and heard at Chambers in Asheville on the 29th day of December, 1876, before Henry J. Upon the facts which sufficiently appear in the opinion, His Honor adjudged that the motion be allowed to the end that the defendants might file an answer and defend the action at the ensuing term of the Court. From this judgment the plaintiff appealed. Mr. J. H. Merrimon, for plaintiff No counsel for defendants. RODMAN, J. This is an application under C. C. P. § 133, to vacate a judgment as taken by surpise, &c. We are of opinion on the facts stated that the defendants are guilty of inexcusable neglect. One of the defendants (W. W. Rollins) was in the town where the Court was sitting, on the day when judgment was rendered and on the day before, and for aught that appears could have instructed his counsel as to the defence and could have verified an answer. Another defendant (P. Rollins) had been present SLUDER v. ROLLINS. at the place where the Court sat, during a part of the term but was compelled by business to leave before the term closed. No reason is assigned why he did not communicate the nature of his defence to his counsel and verify an answer before he left. It is stated that the defendants were advised that they had a meritorious defence. But the nature of the defence is not stated, and it does not appear to have been communicated to the gentlemen who represented the defendants as their attorneys at that Court. The circumstances of cases of this class are so various that precedents can seldom be a certain guide. The case most nearly resembling this is Waddell v. Wood, 64 N. C. 624, where the defendant failed to attend Court expecting that his witness would attend. The witness failed to attend, the defendant's attorney was unable to obtain a continuance and a judgment was given against the defendant. The Court held that the defendant's failure to attend was an inexcusable neglect. In every case where there is an application to vacate a judgment on the ground of mistake, &c., the burden is on the applicant to show a proper ground. The least that can be expected of a person having a suit in Court is that he shall give it that amount of attention which a man of ordinary prudence usually gives to his important business. Judgment appealed from reversed. Let this opinion be certified. PER CURIAM. Judgment reversed. LONG v, COMMISSIONERS OF RICHMOND. JOHN A. LONG an others v. THE COMMISSIONERS OF RICHMOND COUNTY. Taxation County Commissioners -- Duties and Powers -- Contract - by County. 1. Under the statute (Bat. Rev., ch. 27, § 8,) there is no grade among the duties and powers of County Commissioners, and no preference is given to one over another. 2. A Court has no power to interfere with the domestic administration of the affairs of a County so long as the Board of Commissioners act infra vires; Therefore, where it was alleged that a Board of Commissioners had not levied a sufficient tax to defray the ordinary expenses of the County, including the support of the poor, on account of the levy of a tax to pay for repairing the Court House, Held to be no ground for interference by the Courts. 3. A tax levied professedly an 1 improperly for one purpose can be collected and applied to any other legitimate purpose. 4. It is not fraudulent for a Board of County Commissioners to superadd their personal credit to the credit of the County in a contract conceri ing the necessary expenses of the County. INJUNCTION, heard at Fall Term, 1876, of RICHMOND SUperior Court, before Furches, J. The complaint and affidavit of the plaintiff, which were heard before Judge Buxton, at Chambers on the 2 August, 1876, alleged, among other things, that the defendants had made the following levy of taxes for the current year, viz; Special tax for Rail Road purposes; 30 cents on the $100 valuation and 60 cents on the poll. For County purposes; 30 cents on the $100 and 60 cents on the poll; and of one per cent on income. .For Township purposes; 5 cents on the $100 valuation. Special tax for repairs on Court House; 10 cents on the $100 valuation and 20 cents on the poll. |