Kelsey v. Jervis, 30 N.C. 451, 8 Ired. 451 (1848)

Aug. 1848 · Supreme Court of North Carolina

30 N.C. 451, 8 Ired. 451

KELSEY AND BRIGMAN vs. RESI JERVIS.

Where a petition is filed for a certiorari, upon the ground that a judgment has been improperly rendered by default in the Court below, the petition must set forth, not only an excuse for the laches in not pleading, but also a good defence, existing at the time when he ought, to have pleaded.

The case of Betts v. Franklin, 4. Dev. and Bat. Rep. 465 and Dougan v-Arnold, 4. Dev. Rep. 99 cited and approved.

Appeal from the Superior Court of Law of Yancey County, at the Spring Term, 1847, his Honor, Judge Dice, presiding.

This was a petition for a writ of certiorari, in which the petitioner set forth that he had been sued in the County Court in an action of debt, and that knowing it was not just, and thinking it was not legal, that he should pay it, he spoke to an attorney of the Court, who entered an appearance for him, but that afterwards, owing to some misunderstanding between his attorney and the other party, the attorney declined appearing on either side, in consequence of which a judgment by default was taken against the petitioner; that he had been misled by the course the cause had taken, and it had not on that account gone off on its merits. He therefore prayed for a writ of certiorari to bring up the transcript of the record of the case to the Superior Court. The writ was granted, and the case coming on to be heard upon the petition and affidavit, accompanying the same, in the Superior Court at the Spring Term 1847, it was ordered that the judgment by default should be set aside with leave to the petitioner to enter his pleas and have the cause placed on the trial docket; and from this order the plaintiff appealed to this Court.

Gaither and Francis, for the plaintiff.

J. W. Woodjin, for the defendant.

Battle, J.

The only question presented on the record, which we deem it necessary te consider, is whether the petition for the writ of certiorari set forth sufficient matter to entitle the defendant to the benefit of that remedy. A writ of certiorari has been allowed in certain cases as a substitute for an appeal, but it is not, like an appeal, a matter of right of which a party may avail himself for the mere purpose of delay. It has also been allowed where a judgment has been taken in the County Court by default, and upon it the judgment has been set aside and the defendant allowed to plead, but that can never be done, unless the party shew two things, first, an excuse for the laches in not pleading, and secondly, a good defence existing at the time when he ought to have pleaded. Betts v. Franklin, 4. Dev. & Bat. Rep. 465. In the case before us, we need not enquire, whether the defendant has shown a sufficient excuse for his laches, in not pleading, because we are clearly of opinion that he fias failed to show that he had a good defence at the time when he ought to have pleaded. The general allegation, that knowing it was not just, and thinking that it was not legal that he should pay the debt for which he was sued, he had employed an attorney to defend the suit, and that the cause “ had not gone off on its merits,” j is certainly insufficient for that purpose. The defence, whatever it is, must be so set forth in the petition, that the Judge sitting at chambers, or the court, to whom the application for tlie writ is made, may see that it is prima facie a good one, for if it appear to be otherwise the application ought to be refused. Dougan v. Arnold, 4. Dev. Rep 39. The defendant in this case having failed to show in this petition what his defence was, the Judge . ought not to have granted the writ of certiorari, in the first instance, but having done so the Court to which the , transcript of the record was returned, ought to have dismissed it, instead of making the order complained of.

That order must therefore be reversd and the same be certified to the Superior Court in order that the plaintiffs may have their proper remedy against the defendant and the sureties to his certiorari bond.

Per Curiam. Ordered accordingly.