Britt v. Patterson, 31 N.C. 197, 9 Ired. 197 (1848)

Dec. 1848 · Supreme Court of North Carolina

31 N.C. 197, 9 Ired. 197

JOHN BRITT vs. JOHN PATTERSON & AL.

Where an attachment was issued by a justice of the peace for a sum above his jurisdiction to try, and was made returnable before him or some other justice, and where the County Court perrmitted the plaintiff to amend the process by making it returnable to the County Court, and the County Court also permitted the defendant to appeal, upon his giving bond, &e., though lie had not replevied. Held, that the defendant was entitled to appeal, notwithstanding he had not filed a replevin bond. And Held,secondly, that where it appeared that the defendant was not'able at the time to procure sufficient securities for an appeal, lie was entitled to a certiorari, without shewing any merits in fact, the case disclosing, that there were questions of law, which he had a right to have decided by the Superior Court

The cases of Brooks v. Morgan, 5 Ired. 4S4, and Trica v. Ray, 4 Ired. H, cited and approved.

Appeal from1 the Superior Court of Law of Greene County, at the Spring Term, 1848, his Honor Judge Dick presiding.

The plaintiff sued the defendant by attachment. The sum demanded was four hundred and fifty'' dollars. The writ was issued by a single magistrate, and made returnable before him or some other justice of the peace. The attachment was directed to a constable, who had levied it on property belonging to the defendant. In the County Court, the defendant, by his counsel, moved to dismiss the proceedings, which was refused by the Court, and the plaintiff moved to amend, so as to make the writ returnable to the County Court. This was objected to by the defendant., but allowed by the Court. From this judgment the defendant prayed an appeal to the Superior Court, which was granted, on condition of his entering into bond for @1000, with sureties, which he failed to do. The defendant moved his cause into the Superior Court, by certiorari, and in his petition states the foregoing facts, and that his failure to procure sureties was owing to tho magnitude of the sum required, and, as he was informed and believed, to the improper interference of the plaintiff Britt. In the Superior Court, Britt filed his affidavit, admitting the facts set forth in the petition, except as to his interference to prevent the defendant from procuring tho requisite sureties. He further states, that his counsel in the County Court objected to the right of the defendant to appear or be heard in the Court, until he had made himself a party by replevying the property levied on, according to the Act of Assembly, and as he was not a party to the suit, he was not entitled to appeal from the judgment of the Court and consequently had no right to a certiorari. His Honor, the presiding Judge, being of this opinion, the certiorari, on motion of the plaintiff, was dismissed, and the defendant appealed.

Hasted and/. II. Bryan, for the plaintiff.

Rodman, for the defendant, submitted the following argument:

1st. Had the justice who issued the attachment power to make the amendment ?

“The Court in which any action shall be pending shall have power to amend any process,” &c.

If such amendment be made to any pleading in matters of substance, the adverse party shall be allowed an opportunity according to the course and practice of the Court to answer the pleading so amended.” Rev. Stat. Ch. 3, Sec, 1 and 2.

Supposing the justice to be a “Court” within the meaning of the Act. It is contended,

1st. That process absolutely void, is not “process” with* in the meaning of the Act and cannot be amended in any Court.

2nd. That the justice could make no amendment of the nature of that made by him, viz : transferring the suit to the County Court because it would be incompatible with the 2nd section of ch. 3. Rev. Slat.

1st. Process absolutely void cannot be amended in any Court, Ken worthy v. Peppiat, 4 B. & A. 288, (0 E. C. L. R. 426.) J W’s. Dig.p. 145, sec. 1. and cases there cited. 4 Cow. 49, 50 t. Johnson v. McGwiti, 4 Dev. 279.

2nd. To allow a justice to make an amendment of the character of this, would produce great injustice, as a justice keeps no records. A defendant (who has no notice of the amendment.) would never know where to find a suit against himself, nor where to appear,' and has no opportunity to answer according to the statute.

3rd. The County Court had no power to amend, because the process was not pending before it. Smith v. Tow, 2 Ire. 344, and also because the process was absolutely void.

4th. An attachment is not amendable in matter of substance.

An amendment of a bailable writ discharges the bail. 1 Arch. Prac. 317.

The seizure of property is in lieu of aft arrest and bail, and by an analogy, the amendment discharges the property and would thereby dissolve the attachment.

5th. The Court should have dismissed the attachment, notwithstanding the defendant had not replevied.

Sergeant on Att. 147, citing 1 Dali. 219, Donne v. Pen-hollow, Id. 152, Id. 158,show that the irregularity may be pointed out by t.he' defendant or any other person, and the Court is bound to notice an error apparent on the record. Serg. Alt. 13S.

As to the right of defendant to appeal.

Anders v, Meredith, 4 Dev. & Bat. 199, decides that where the Court has the power to amend and exercises its discretion, there is no such right. See Cape Fear Bank v. Williamson. 2 Ire. 1-17. Dickinson v Lippet, 5 Ire. 560.. Sl ade v. Burton, 6 Ire. 207. The presumption is that the judge did not hear the evidence, but decided simply on the right to appeal from the County Court.

Nash, J.

In the case sent to this Court, it is stated, that the plaintiff moved to dismiss the certiorari, because the defendant, not having replevied the property levied on. was not in Court, and on the other grounds set forth in his affidavit. The first enquiry was, under the circumstances of this case, was the .defendant entitled to an appeal from the County to the Superior Court? We think he was. The Act of 1777 is very broad and, comprehensive in its terms, in granting appeals — "if any person, either plaintiff or defendant, or who shall he interested, in anjr judgment, sentence or decree of any County Court shall be dissatisfied,” &c., he may' appeal, &c. Here the defendant was a party, and the only party defendant— against him alone, the attachment issued. Before he was entitled to plead, it was necessary' he should.reple-vy, because the attachment is to compel an appearance. The judgment, from which the defendant appealed, was not one denying him the right to plead, but from one dismissing the certiorari. denying him the right to bring his case before the Superior Court in that way, because, not entitled to appeal. Under the act of 17 77, he was entitled to the. appeal. The next enquiry is, had he a right to the writ of certiorari, under the circumstances of his case? The petition states, and the answer of Britt does not deny it, that the County Court granted the appeal, upon the defendants giving bond and good sureties in the sum of $1,000, and he was unable to give the bond, in consequence of the magnitude of the sum designated. The sum was a large one, being more than doublethe amount of that demanded in the writ. Whether there was any oppression in this or not, is not now to be decided The defendant swears that he endeavored to procure sureties and failed, and by that inability was deprived of the right secured to him by law. But the law does not suffer any man to be deprived of his rights by fraud, accident or mistake, and the ordinary use of the writ of certiorari is to supply the place of an appeal, where a party has been deprived of it, from either of the causes, above enumerated. Brooks v. Morgan, 5 Ired. 484. The same, cause assigned here by the defendant for not availing himself, was assigned by the plaintiff in the case Trice v. Ray & Yarboro, 4 Ire. 11, to-wit: inability to procure sureties to his appeal bond. But it is said, that the defendant had not sworn that he has a good de-fence to the action, or to merits. In this case we do not deem it necessary, that he should state other merits than those apparent in the record. They raise questions of law of material import in the cause, which were proper for the consideration of the Superior Court, to-wit: whether the property was not discharged by the alteration of the attachment by the magistrate, and whether the amendments were properly made in the County Court, and for the want oí a prosecution bond, after the alteration by the magistrate, besides others. Collins v. Nall, 3 Dev. 224. The defendant was deprived of the remedy provided for him by the Act of 1777, by no fault of his, and the certiorari was the only mode by which he could be placed in a situation to have his cause heard.

We are of opinion his Honor erred in the judgment given.

Psa Curiam. Judgment reversed and cause remanded.