Williams v. Schimmerhorn, 53 N.C. 104, 8 Jones 104 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 104, 8 Jones 104

BENJAMIN C. WILLIAMS, Adm’r., v. URIAH SCHIMMERHORN.

A judgment on a ca. sa. bond, during- the term at which it is réndered, is in .fieri, and may be-set aside-on-motion; and an appeal from the County ’to the Superior Court, from an order setting aside such-judgment, is erroneous, and will be dismissed'bn motion.

Appeal from the'County Court,1 on-a motion to-feet aside a judgment, before 'French, J., at the‘last Fall Term of Moore Superior Court.

The defendant had given a bond for his appearance -at the July Term, 1860, of Moore County Court, to take the‘benefit -of the act for the relief of insolvent debtors. Not making his appearance in the forenoon, of Monday of the term, he and his sureties were called-,-and judgment was rendered against them, for the amount of the -judgment and --costs. Subsequently,'in t-he term of tfe&t Court, the defendant made an-affidavit that he was sick, and -unable to get to t:he courthouse on Monday, before he was called. Gn this affidavit, the Court ordered the judgment to be set aside, and the plaintiff appealed to the Superior 'Court. In the Superior Oourt, his Honor deeming that the plaintiff -had no right to appeal •from the order of the County Court, dismissed it, and ordered ;a procedendo,'from-which plaintiff appealed to this Court.

Neill McÑay and McDugald, for the plaintiff.

McDonald, for the defendant.

Pearson, C. J.

There is no error; the proceedings of every 'court are said to be in fieri, until the term expires ; that is, its actions are not considered, in law, as completed or done, but as being held in suspense, under consideration, until the end of the term, consequently, the County Court had power, in our case, to set aside the judgment. Its exercise was a mere matter -of discretion, and the plaintiff had no more ground for an appeal, than he would have had from an order of the Court, allowing a continuance.

It follows, there is no error in the order of the Superior Court, dismissing the appeal. After which, that Court could have nothing more to do with the case, and a procedendo properly issued.

Per Curiam,

Judgment affirmed-.