
    GLOBE POSTER CORPORATION v. JOHN S. DAVIDSON, BISHOP DALE, et al., Partners, Trading as SOUTHEASTERN COLORED FAIR ASSOCIATION, CHARLOTTE, N. C., and SOUTHEASTERN COLORED FAIR ASSOCIATION, INC.
    (Filed 19 May, 1943.)
    Courts § 2d—
    On appeal to the Superior Court from a judgment of a justice of the peace, defendants are entitled to a trial de novo, even when they are called and fail to appear.
    Appeal by plaintiff from Johnson, Special Judge, at February Term, 1943, of Megelenburg.
    
      W. T. Shore for plaintiff, appellant.
    
    
      Louis J. Hunter for defendants, appellees.
    
   Per Curiam.

This was a civil action instituted by the plaintiff against the defendants before a justice of the peace to recover for goods alleged to have been sold and delivered by the plaintiff to defendants. From an adverse judgment the defendants appealed and duly docketed their appeal in the Superior Court of Mecklenburg. In the Superior Court the defendants were called and failed to appear and prosecute their appeal, whereupon judgment by default was entered against the defendants in favor of the plaintiff, without any trial de novo. Execution was issued upon the judgment so entered and the defendants lodged motion to restrain the sheriff from executing such execution and to vacate said default judgment. Upon hearing the defendants’ motion the restraining order was duly issued and the default judgment vacated; and the cause directed to he placed on the civil issue calendar for trial. From this order the plaintiff appealed, assigning error.

The defendants were entitled to- a trial de novo. Therefore, there was no error in striking out the default judgment entered against them and restraining action pursuant to an execution issued thereupon. C. S., 660; Barnes v. R. R., 133 N. C., 130, 45 S. E., 531. “. . . if the defendant fails to appear and make his defense, even when he has appealed, there must he a trial to entitle the plaintiff to a judgment, if the defendant has raised a material issue.” N. C. Prac. & Proc. (McIntosh), par. 703 (4). p. 817.

Affirmed.  