Fulbright v. McElroy, 32 N.C. 41, 10 Ired. 41 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 41, 10 Ired. 41

BARNOT FULBRIGHT vs. JAMES McELROY.

When a witness has been summoned to attend at Court, though a verdict may bo rendered in the cause, yet if a new trial is granted, he is bound to attend the subsequent terms, until a final decision, without a new subpoena.

The case of Sweany v. Hunter, 1 Mur. ISO cited and approved.

Appeal from the Superior Court of Law of Haywood County, at the Fall Term 184S, his Honor Judge Manly presiding.

This was a scire facias against a defaulting witness, to which he pleaded that he had not been summoned. Upon the trial, the case appeared to be this. The plaintiff had brought an action against one Dillard, and the defendant was duly summoned as a witness In his behalf. He regularly attended at the different terms of the Superior Court of Haywood, where the action was pending, up to the Fall Term 1847, when the cause was tried and a verdict rendered, Subsequently, at the same term, the verdict was set aside and a new trial granted. At the Spring Term 1848, the witness, the defendant in this sci-re facias, was called, and, failing to appear, a judgment nisi was rendered against him for the penalty of forty dollars, given by the act of the General Assembly. This scire facias was issued to the defendant to shew cause, why final judgment should not he rendered against him. A verdict and judgment were rendered for the plaintiff, and the defendant appealed.

Henry, for the plaintiff.

Edney, for the defendant

Nash, J.

We perceive no error in the judgment appealed from. The defendant alleges, that, after the trial and verdict at the Fall Term 1847, he was not bound to attend, until re-summoned. The Statute, which gives the penalty against a witness, duly summoned, for not attending the terms of the Court, also points out his duty. It declares, he shall appear and continue to attend, “ from time to time, until discharged either by the Court, or the party, at whose instance he is summoned.” The plea is, the defendant was not under subpcena: the case states, he was summoned. It is not pretended, he was actually discharged, either by the Court or the plaintiff, at whose instance he was summoned; but it is insisted, that, by the verdict, the cause was out of Court and the witness legally discharged. The premises not being correct, the conclusion from them cannot be sound. By the verdict, the cause was not out of Court, and, while the term continued, it was in the power of the Court to re-instate it, as it was before the trial; and, after the new trial was granted, it was, to every intent, the same cause, and the defendant was bound to take notice of it, and attend under his Subpcena, until duly discharged. This principle has been considered settled, ever since the case of Sweaney v. Hunter, 1 Mur. 180, tried in the year 1808, upwards of forty years since.

Per Ctjriam

Judgment affirmed.