Merrell v. McHone, 126 N.C. 528 (1900)

May 15, 1900 · Supreme Court of North Carolina

126 N.C. 528

H. F. MERRELL et al. v. C. A. McHONE.

(Decided May 15, 1900.)

Justice's Oourt — Attachment—Becordari.

An attachment wrongfully issued from the Justice’s Court against a citizen of the State, transiently absent, is remedied by reeordwri.

AttachmbNT PROCEEDING from the Justice’s Court, heard before Biai’btock, J., at Fall Term, 1899, of Madison Superior Oourt. A petition for recordari, as substituted for appeal, had been granted by Norwood, J., at a previous, term, but the writ had not been complied with. The order was reiterated at present term, and upon the return to it, the plaintiff moved to dismiss, which was refused. Plaintiff excepted. Upon tbe trial, judgment was rendered for tbe defendant. Plaintiff excepted on appeal.

Messrs. W. W. Zachary, and J. M. Gudger, Jr., for appellants.

Appellee not represented in this Court.

Clark, J.

The Code, sec. 876, provides: “If the judgment is rendered upon process not personally served, and the defendant did not appear and answer, he shall have fifteen days after personal notice of the rendition of the judgment to serve the notice of appeal herein provided for.” Judgment was rendered, in an action based upon an attachment, by a Justice of the Peace against the defendant who was absent at work in another State. Within a short time he. returned to the State, and as soon as he had information of the judgment be applied to the Justice for a rehearing (Code, sec. 845), or an appeal, both of which were refused on the ground that the papers in the cause had already been sent up to the Clerk of the Superior Court, as is required in attachments upon realty. Code, sec. 354. It is not contended that any personal notice of the judgment was ever given the defendant.

At the first term of the Superior Court, an affidavit and petition for recordari were filed, and an order for the recor-dari issued. Not being obeyed, an alias issued, and on its return the plaintiff moved to- dismiss, which was refused. No appeal lay from such refusal (Perry v. Whitaker, 77 N. C., 102), and it was properly entered as an exception. The final judgment being against the plaintiff, it now comes up for review. Had the final judgment been in favor' of the plaintiff, the exception would then have become immaterial, and an appeal unnecessary.

There was no laches on the part of the defendant. He was entitled to an appeal upon learning of the judgment. He applied immediately to the Justice of the Peace, and he having refused to make a return of an appeal to be docketed in tire Superior Court, it would have been useless to give notice to the plaintiff of an appeal which was not allowed to be taken. Besides if, as the defendant avers, he was not a non-resident, he could have applied to the court for a writ of recordari, without applying to the Justice of the Peace for an appeal at all. McKee v. Angel, 90 N. C., 60; Caldwell v. Beatty, 69 N. C., 365; Clark v. Manufacturing Company, 110 N. C., 111. The defendant applied at the first succeeding term of the Superior Court for a writ of recordari. Notice was given of its issue to the plaintiff as well as to the Justice of the Peace. The defendant averred merits, as required in such application, and the result of the trial has shown he was right therein also.

No' error.