Bowman v. Foster, 33 N.C. 47, 11 Ired. 47 (1850)

June 1850 · Supreme Court of North Carolina

33 N.C. 47, 11 Ired. 47

WILLIAM BOWMAN vs. PATRICK FOSTER.

Where a certiorari is returned to Court, no proceedings can he had on it, until notice of its return has been given to the person, against wliom it issued.

Where a party, who is brought in by certiorari, may, upon motion, on the ground of irregularity, have the proceedings dismissed, but he waives that motion and submits to plead to the action, he has a right to do so.

The case of Bender v. Askew, 3 Dev. 150, cited and approved.

Appeal from the Superior Court of Law of Guilford County, at the Spring Term 1850, His Honor, Judge Battle, presiding.

The defendant gave his bond to one Peebles for $31 34, payable September 21st 1841, which was endorsed after it fell due to James McNairy, the intestate of the plaintiff. In February 1846 the plaintiff gave the bond to a constable to collect, and on the 14th March 1846 a justice of the peace gave judgment for the defendant on a warrant on the bond, upon the allegation by the defendant and evidence, that it had been paid before the assignment. On the 15th of October 1848, the plaintiff obtained a re-cordari upon his affidavit, that the witness, who gave evidence of the payment, was a person of doubtful character, and that the plaintiff believed his testimony to be false, and that the bond was' unpaid and still due : and, farther, that the constable omitted to give him any information of the judgment, and that he had no knowledge thereof, until the Spring or Summer of 1848.

The proceedings were brought into Court in October 1848, and, without any notice served on the defendant, there was an order entered at the next term, that the ■judgment was set aside, and a trial in Court awarded : and at the succeeding October term 1849 the plaintiff’ for the want of a plea, took a judgment by default final for the debt and interest according to specialty, and thereon issued execution. At spring term 1850 the defendant moved the Court to set aside the judgment and execution, and allow him to plead. In support of the motion he made an affidavit, that no notice of the recordari had been given to him, and that, until the sheriff came with the execution, he was entirely ignorant of any thing having-been done in the matter, after the judgment had been given by the magistrate, and also that he paid the debt to Peebles while he held the bond. A rule was accordingly granted, andón service thereof the plaintiff showed cause against it b}^ his affidavit, that he still believed the debt had. not been paid, but was due, and, also, that from the length of time the recordari pended, before entering the judgment, he inferred, that the defendant had notice of it in fact. The rule was made absolute, and by leave of the Court the plaintiff appealed.

Iredell, for the plaintiff.

Morehead, for the defendant.

Ruffin, C. J.

The purposes of justice require,.that judgments by default should be under the control of the Court at all times, and be set aside, when signed irregularly and against the course of the Court, when there was no regular service of process, or other due notice to the party, and without his appearance. Bender v. Askew,3 Dev. 150. The oath of this person is positive, that he had no information of any step taken in the matter for nearly four years after judgment given in his favor; and there is nothing in the record in opposition to that statement. It follows, necessarily, that the judgment could not stand against him. When set aside, the defendant might, indeed, have insisted on the certiorari being dismissed, as having been improvident^ granted. For, it was the plaintiff’s own look out, that his agent should serve him faithfully; and, moreover, his delay in making enquiry into the matter, until the expiration of two and a half years after the judgment against him, constituted such laches, as ought to preclude him from this remedy. The defendant, however, did not insist on that, and was content to be admitted to plead, averring the merits to be with him; and to that there.can be no just objection.

Per Curiam. Judgment affirmed.