The opinion
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Clakk,, 0. J.
Tbis action was begun before a justice of tbe peace in Duplin County by tbe plaintiff, wbo lived in tbat county, against tbe defendant, Register of Deeds of New Hanover, to recover tbe penalty of $200, under Revisal, 2090, for unlawfully issuing a marriage license. Tbe summons was served upon the defendant, wbo happened to be in Duplin County.
Tbe justice refused the motion to remove tbe action for trial from Duplin to .New Hanover, and rendered judgment against defendant, from which be appealed to tbe Superior Court. On appeal, tbe defendant moved in 'the Superior Court to dismiss the'action, and also to remove it to New Hanover. Both motions being refused, tbe defendant appealed. Revisal, 420 (2), provides tbat an action against a public officer “for an act done by him by virtue of bis office must be tried in tbe county in which tbe cause of action arose.” Reffisal, 425 (1), provides: “When tbe county designated for tbat purpose is not tbe proper county,” tbe action .should be removed, not dismissed.
The statute is explicit
that
such action should be “tried” in New Hanover, and having been wrongly brought in Dujdin, it should have been removed to New Hanover. It is true tbat, as held in
Fisher v. Bullard,
109 N. C., 574 , there is no defect of jurisdiction, since tbe magistrate bad jurisdiction of tbe subject-matter (being a penalty for not more than $200), and service bad been made upon the defendant.
The
defect was
one
of
venue,.
Tbe justice of tbe peace having declined to remove it, when the action got into tbe Superior Court, tbat court having full jurisdiction to try it, tbe cause should not have been dismissed, nor remanded to tbe justice of tbe peace, but it should have been removed to tbe county of New Hanover, tbat being tbe proper order under Revisal, 425 (1).
In
Fisher v. Bullard, supra,
tbe action was brought in the county where tbe defendant resided, and while tbe act for which tbe penalty in suit was incurred was the burning of tbe woods in another county, it would have been difficult to have enforced tbe penalty, since tbe act authorizing tbe indorsement of tbe warrant of a justice of tbe peace by a justice of another county, except under Revisal, 1449, 1450, applies only in criminal cases. Tbe motion in tbat case tbat was presented before
*343
tbe justice and on appeal was not a motion to remove, but a motion to dismiss, and tbe Court beld merely that tbe latter motion was properly refused. If tbe motion bad been to remove, our conclusion should and, doubtless, would have been different.
In
Austin v. Lewis,
156 N. C., 461 , tbe action was begun in Union County, before a justice of tbe peace against a nonresident of that county by warrant issued to another county, when there was no
bona, fide
defendant living in tbe county of tbe justice. This was in violation of tbe act of 1876 and 1877, now Revisal, 1447, which was enacted to forbid such practice which bad.led to serious abuses, and tbe Court beld that in such case there was a defect of jurisdiction and hence dismissed tbe action. There was no valid warrant or service in that case. Here both were valid, but tbe action was triable,
i. e.,
tbe venue, was in New Hanover.
Tbe present case, therefore, differs from both tbe above.
Wooten v. Maultsby,
69 N. C., 462 , was a case similar to
Austin v. Lewis, supra,
and it was beld that the justice of tbe peace acquired no jurisdiction, tbe warrant having been served in another county without any law which authorized such service. In
Lilly v. Purcell,
78 N. C., 82 , tbe Court beld differently under tbe act of 1870, but pointed out that under tbe act of 1876-7, now Revisal, 1447, which restored tbe law as it was prior to 1870, tbe Court would have no jurisdiction. This ruling was followed by us in
Austin v. Lewis, supra.
In this latter class of eases, in which tbe warrant is attempted to be served .by issuing it to another county, tbe action is forbidden when there is no
bona fide
defendant in tbe county where tbe justice resides and a removal would not give tbe relief against abuse which was sought by tbe statute. In such cases there is a defect of jurisdiction, and not merely of venue.
Tbe appeal from tbe refusal of tbe motion to remove tbe cause to tbe proper county was not premature.
Brown v. Cogdell,
136 N. C., 32 , and cases there cited.
Reversed.