Anonymous, 1 N.C. 146, 1 Tay. 146 (1798)

Nov. 1798 · North Carolina Superior Court

1 N.C. 146, 1 Tay. 146

Anonymous.

The Superior Courts cannot reverse one of their judgments for error in a matter of law; but if it be absolutely void they will set it aside at any time, in motion.

THE plaintiff had taken a capias which has returned non est inventus; then an attachment, upon which the Sheriff returned “levied on two negroes, but not taken into custody because there “was no jail of the county to keep them in:" upon this return, the plaintiff took a judgment by default and afterwards executed a writ of inquiry and had judgment final; and now,

Hill for the defendant

moved to set it aside for irregularity, and he produced an affidavit of the defendant stating that he had not any notice of these proceedings.

Jocelyn for the plaintiff.

The judgment was obtained a term or two ago, and cannot now be set aside unless by a writ error.

Haywood, J.

When this court passes a judgment, and the term expires; it cannot, in general, be set aside but by a writ of error: and then only in a case where the error is in a matter of fact, to be tried by a jury. If the error be in a matter of law, this court cannot reverse its own judgment for any such error; for then proceedings would be endless: but if the judgment be absolutely void, being given against a person who was not served with process; or if it be taken irregularly against the known rules of the court, it may be set aside at any time on motion.

Here the property was not taken into the actual custody of the officer; had it been so, the law supposes notice would have come to the defendant; and without such an actual taking of the property levied on, into the officer’s custody, the attachment is not well executed and does not bring the defendant into court: consequently this judgment was irregular, having been taken against one not in court, and must therefore be set aside.

Judgment set aside.