Rule & Hall v. Council, 48 N.C. 33, 3 Jones 33 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 33, 3 Jones 33

RULE & HALL vs. JOHN T. COUNCIL.

Where a party in a suit is guilty of laches, in failing to enter a defense to the note sued on, which he alleges to be a forgery, and in failing- to attend the Comity Court, in which the judgment is taken, and to take an appeal, he is not- entitled to have the case brought to the Superior Court by certiorari.

Petition for a certiorari, from Cumberland Superior Court

Upon the facts set forth in the petition, writs of c&rliorcwi and supersedeas had ‘been issued in vacation, directed to the County Court of Cumberland, and to the sheriff of Bladen, and on being returned at Fall Term last, his Honor Judge Ellis presiding, a motion was made to place the cause on the trial docket, to be tried de novo, which was met on the other side, by a motion to dismiss the petition, on the ground, that there was no sufficient cause set ont for this extraordinary interference with the course of the Court. The facts as set forth in the petition, are as follows: Rule & Hall, who are merchants, living in the city of New York, obtained a judgment against the petitioner, in the County Court of Cumberland, for about $180, with interest, and took out execution thereon, which was placed in the hands of the sheriff of Bladen, in which county petitioner lived. The judgment was founded on a note purporting to be signed by “ John T. Council, by Council, Cain & Co.” Previously to March Term of Cumberland County Court, several writs were served upon this petitioner, as a member of the firm of Council, Cain & Co. of Fayetteville, to which he gave bail for his appearance at the return term, and wrote to Mr. Banks, an attorney practicing in the court, “to enter dilatory pleas in the cases where he, Council, was concerned.” In pursuance of this instruction, Mr. Banks entered pleas not affecting the cause of action, commonly called dilatory pleas, in all the cases against the defendant returned to that term of the court, including that of Rule & Hall; and final judgments were entered in all of them at the next term of the Court. Tie sets forth further, in his petition, that he never purchased goods, or had any dealings with the plaintiffs, Rule & Hall; never made, or authorised any one else to make, a contract for him with the firm of Hule & Hall, or with either of them, and never signed the note upon which judgment was obtained, and never gave authority to any firm or individual to sign it for him. He denies all knowledge of the transaction, and “declares that he never knew or susj>ected he was sued individually, until the sheriff of Bladen came to him with the execution. He declares his willingness and ability to pay all the judgments obtained against the firm of Council, Cain & Co., although he is only a silent partner; but in relation to this debt, he says, he does not owe it; never did owe it, nor does the firm of Council, Cain & Co. owe it; and he adds, that said firm did not sign his name to the note in question, or deliver the same to plaintiffs, and that the members of that firm know nothing concerning it.”

Hpon considering the facts set forth in the petition, his Honor, being of opinion that there was not sufficient matter therein to authorise the eertiorcvri, refused the motion to put it on the trial docket, and ordered the j)etition to be dismissed. From which judgment, the petitioner, Council, appealed to tiffs Court.

Shepherd, for plaintiffs.

JBcmlcs and MeDugald, for defendant.

Nash, C. J.

Vigilantibus non dormientibics serval lex, is an old and valuable maxim of the law. For almost any supposable grievance or wrong, the law has provided a remedy. But this remedy must be availed of in proper time, and in an apt manner. Men must take care of themselves. If they will not, they must take the consequences. The defendant was a member of a mercantile firm doing business in Fayetteville. He lived in the County of Bladen, and says in his peti-' tion that he was a sleeping partner. Truly he was a sleeping partner!

The firm became embarrassed, and the defendant being sued in several cases as a member of the firm, instructed an attorney of the Court to which the writs Avere returnable, “ to enter dilatory pleas in the cases where he, Council, was concerned.” The plaintiffs were merchants of New York, and creditors of the firm of Council, Cain and Co., and brought their action on a note to which the name of the present defendant purports to have been signed by Council Cain & Co. When, therefore, the writ was returned, the attorney, obeying strictly his instruction, entered dilatory pleas alone. March Term of Cumberland County Court was the return Term of the writ, and judgment upon the note Avas rendered at June Term following. The defendant denies that he ever signed the note, (that is evident from the face of the note)—and that he ever authorised any person to sign it for him; and that he was told by the other members of the firm that they never signed his name to it, and knew nothing of the note—in other words, that the note was a forgery out and out. Whether he authorised the firm to sign his name is not material. If the note was given for a firm debt, the firm had a right to bind him for its payment, by an instrument not under seal. But this is beside the mark. The defense now set up by the defendant was open to him at the return of the writ. Tie did not avail himself of it by a proper plea entered at the proper time. This case is much stronger against the defendant, the petitioner, than that of Baker v. Halstead, Bus. Rep. 41. There, the petitioner had entrusted one Lake, one of the defendants, who was also on the paper, to enter his pleas for him. This he failed to do, and judgment was rendered against him. The recordand was dismissed, upon the ground that the petitioner was guilty of laches in not attending to his own business. There, he gave directions to an agent to have a full defense made. Here, the agent received instructions to enter only dilatory pleas. There, the agent proved faithless. Here, he obeyed the instruction received.

In the argument, it was insisted that the defendant did not know where to go to get information as to the nature, of the instrument upon Avhich he was sued, as the plaintiffs lived in NeAV York, and he in Bladen county, some distance from Fayetteville. If the plaintiffs did live in New York, he must have known that the note was in this State; and by an application to his own counsel, he could easily have found out who was the attorney of the plaintiffs. The writ informed him he was sued alone. It was returnable to March Term when the pleas were entered, and judgment was entered at June Term. Here was a period of three months, during which he makes not the slightest effort to ascertain the nature of the claim against him. The petitioner admits his knowledge of his legal responsibility for the firm debts, but does not state whether the note in question was, or was not, given for such a debt; or whether, if it was not, the goods purchased ever came into the firm. Indeed he puts his whole claim to the relief he seeks, upon the ground that the note is a forgery, out and out. Be this as it may, he had the right to bring that question before the proper Court. Tie failed to do so, and must abide the consequences of his own negligence. In this case the defendant was entitled to an appeal to the Superior Court. He was absent from Court when the cause was tried, from no inability to attend/, and made no application for an appeal. Where the law provides a particular mode, by which a cause may be removed from an inferior, to a higher tribunal, that mode must be pursued. Where the proceedings of the Court are according to the course of the common law, if the party has been denied this privilege by the Court, or he has been deprived of it by fraud or accident, or is unable at the time to comply with the requirements of the law, he may procure a certiora/ri. The petitioner has not placed himself on any of these grounds, Brigman v. Jervis, 8 Ire. Rep. 45I, Satchwell v. Rispess, 10 Ire. Rep. 365.

In the Superior Court, the petition for the certiorari, on motion, was dismissed, and & procedendo to the County Court of Cumberland ordered. In this judgment there was no error and it is affirmed.

Per Curiam.

Judgment affirmed.