W. W. v. Weaver, 52 N.C. 626, 7 Jones 626 (1860)

Aug. 1860 · Supreme Court of North Carolina

52 N.C. 626, 7 Jones 626

W. W. AND THOMAS LONG, Trustees, v. GEORGE W. WEAVER.

It was held to be error to admit parol evidence to impeach an entry of a magistrate, allowing ten days for a party to give security for an appeal from his judgment, showing that such, entry was made without an affidavit, that he was then unprepared with security.

This was an appeal from a justice’s judgment, which came before Heath, J., upon a motion to dismiss.

Tbe proceedings of tbe magistrate showed a regular judgment against tbe plaintiff, an entry below such judgment, that the plaintiff prayed an appeal to tbe Superior Court, and ci^aved ten days to give security, and a regular appeal on security given within tbe ten days. The defendant moved, in the' Superior' Court, to dismiss the appeal, on the ground, that when the above entry was made, no affidavit was made by the plaintiff, that he was not then prepared with his security.The defendant then introduced the justice of the peace, before whom the warrant was tried, who stated that the plaintiff and defendant were both present at the trial; that when the ten days were asked for by the plaintiff, nothing was said by Mm, or either party, about an affidavit, and that he did not himself know that an affidavit was required by law; that the defendant said nothing- about it. This evidence was -objected to by the plaintiff, but admitted by the Court.

Whereupon his Honor dismissed tire appeal, and the plaintiff appealed.

W. P. GaMwell, for the plaintiff.

Barber, for the defendant.

Manly, J.

The proceedings by which this case was carried into the Superior Court from the justice’s judgment, appeared upon their face to have been regular. It is only through the oral testimony, derived from the justice himself, that we learn there was no affidavit made by the appellant to obtain time to put in security for the appeal. The resort to such testimony to impeach the justice’s proceedings in respect to a matter of that kind, we think, is irregular-. Proof dehors the proceedings as recorded, may be introduced to contest the genuineness of the justice’s signature — to show an interpolation or forgery, or to show that it was done by the justice out of his county, where he had no jurisdiction, but it is inadmissible, we take it, to destroy the effect of the justice’s -conclusions and judgment, by showing that some formality, prescribed by law, has not been complied with, as upon a question of judgment or no judgment, that the witnesses were not sworn, or upon a question of time to appeal, that no affidavit was exacted.

This is in accordance with, and not opposed to, the principle laid down in the case of Carroll v. McGee, 3 Ire. 13, in which a well established principle is reaffirmed : that proceedings before a single justice, are not records proper, proving themselves upon production, but Wee records in the conclusiveness of their effects upon the parties.

Orrmiapresumuniur rite esse acta, all things are presumed to be done rightly in judicial proceedings, if there be nothing apparent upon the recorded matter to show . the contrary. This presumption is not one of fact .to be rebutted by oral proofs, but is one of law, and conclusive upon the parties. Any other rule, it seems to us, would cause the proceedings of our justices’ courts to be as unstable as the varying memories of men. "We conclude, therefore, it was erroneous to go behind the judgment of the justice, upon the matter of plaintiff’s right of appeal, and show by oral testimony that something was not done, which ought to have been done, to justify that judgment. There is nothing on the face of the papers to show the conclusions of the magistrate erroneous, or that they were based upon defective or improper proof, and neither the justice, himself, nor any one else, can he heard, in that condition of the recorded evidence, to impeach the conclusions therein stated

This opinion must he certified to the Superior Court of Ire-dell, to the end that the judgment, dismissing the appeal, may he reversed, and the case proceeded in according to law.

Per Curiam,

Judgment reversed.