Mathews v. Moore, 6 N.C. 181, 2 Mur. 181 (1812)

July 1812 · Supreme Court of North Carolina
6 N.C. 181, 2 Mur. 181

Mathews & McKinnish v. Wm. Moore & Claiborn Harris.

From Cumberland.

Judgment set aside upon motion for irregularity. Judgments confessed before tlie Clerk, where there is no Court, are irregular, and will be set aside upon motion. The rendering of a judgment, is a judicial act to be done by tlie Court only.

This was a motion, to set aside a judgment for irregularity. A writ was sued out at the instance of the Plaintiffs against the Defendants, returnable to the Superior Court of Law, for Cumberland County, at Spring term 1811, the service of which was acknowledged by the Defendants on the 4th March, 1811, and the following endorsement was made:

*■ Service acknowledged 4th March 1811,


« Teste, “ C. HARRIS.

“ V. McIstire.

“Judgment confessed by the Defendants in person, agreeably to the specialties filed. Any credits that shall appear on statement between tlie Plaintiffs and William Moore, to he admitted. Stay of execution six months.

“ WM. MOORE, ■


Afterwards, during the week appointed by law, for holding the Court in April, 1811, tlie Clerk entered up jndgtnent agreeably to,this endorsement^ and when six months liad expired, he issued execution for the debt and costs. William Moore, one of the Defendants, applied to one of the Judges for a writ of supersedeas, and made an affidavit, setting forth, that sometime in the week assigned by law for holding the Superior Court in the County of Cumberland, in the spring of 1811, be and Claiborn Harris confessed a judgment before the Clerk of said Court, to Mathews and McKinnish for the sum. ef ¿6450 or thereabouts, with costs. That there was no *182Superior Court holden for the County of Cumberland, in the spring of that year, by reason of the indisposition of the late Judge Wright ; and that he was advised the saj(j jui]g-ment was irregular and ought to be set aside.” A supersedeas was awarded, and at the next term of the Court, the judgment was set aside, and the Plaintiffs therein appealed.

Haii Judge,

delivered the opinion of the Court:— It cannot be seriously contended, that the judgment in this case is regular and legal. What authority has the clerk to enter up judgment where there is no Court ? It is his business to record the proceedings of the Court; but the rendering of a judgment, is a judicial act, to be done by the Court only. The judgment is irregular and must be set aside.