Anonymous, 2 N.C. 197, 1 Hayw. 197 (1795)

April 1795 · North Carolina Superior Court

2 N.C. 197, 1 Hayw. 197

Anonymous.

An »ppe]!ee may move for an affirmance of the judgment with double costs, either at <lit first, i; any o.'n-r term 'fter the appeal. Per Macay, Judge.’ But Haywood, Judge, denied the propriety of it, and a rule upon the appellant to show cause at the nest term, was ordered.

Mr. Norwood moved to have leave, to enter up the af-firmance of a judgment of the County Court, upon an appeal taken from thence to this court. The appe.il was returnable to last term, but no motion was then made for the affirmance. The appellant had failed t.o bring Up the appeal fifteen days before the term. Judge Macay —To the best of my remembrance, it has always been the practice to enter up judgments, as now moved for, at any time. Judge Haywood — Whatever may havei been the practice I cannot say, not having attended to it in this particular — sometimes a practice may prevail for a length of time, upon the strength of a precedent passing sub silentio, which, when it comes to be. examined may be found very erroneous. Where an appeal is taken, both the appellant and appellee, have the first day of the next term of the Superior Court given to them for their appearance in court, and by that means they are botli in court that day — the appellee to move for the affirmance of judgment, and the appellant to defend himself against the motion, by shewing any good cause tie may have against it, as payment, release or the like, since the appeal taken. The act of 1777, ch. 2. sec. 84, directs, that the appeal shall he brought up fifteen days before the sitting of the term, for this reason principally, that the appellee may have sufficient time, after knowing the appeal is intended to be prosecuted, by its being filed in the office for that purpose, to prepare himself for the trial, or if not filed, then to procure from the Clerk of the County Court a transcript of the record, and thereupon move for the affirmance ; but if the first term of the Superior Court passes without any such motion for the affirmance, and without.putting the cause on the records of this court, and continuing it to the next term, the parties are both out of court; and one of them cannot move againt the other, without bringing him into court again by some new process. 7 Hep. 30 a. It ■ would be productive of great mischief, could the appellee at any distance of time, in the absence of the appellant, liberty to take a judgment against him upon a mere motion to the court. By such means a judgment, misfit: be entered against a man, upon"an old dormant County Court verdict, after be had moved out of the country,, and perhaps satisfied the demand ; or when the Plaintiff' had discovered his evidence were lost, and aM theproperty he had here be swept away, before he could have the least intimation of it. 1 am cry Hear, if the practice spoken of has prevailed, (bat if is repugnant to an universal principle of law ami justice, that no man shall he condemned ex parts or unheard, as well as to 1 lie true meaning of the act — therefore i cannot yield my consent to the motion; hut 1 am willing you should take a middle-way — you may give uothe to the appellant of the intended motion for1 affirmance to he made at the next term ; and at the next term prove ihe service of this notice by affidavit filed in court, and then renew your motion, am! the court will then consider it — -von may have a rule entered for this purpose — so the rule was entered accordingly.!

Note. — Vide Brickell v. Bass, ante 137.