Brady v. Beason

• Decision Date: 30 June 1846
• Court: North Carolina Supreme Court
• Parties: CARROL BRADY et al. v. ISAAC BEASON.

6 Ired. 425

28 N.C. 425

CARROL BRADY et al.

v.ISAAC BEASON.

Supreme Court of North Carolina.

June Term, 1846.

Where upon a writ of recordari judgment was rendered against the plaintiff in the recordari, and the clerk entered the judgment against the sureties only for the costs, and the Court at a subsequent term directed that the judgment should be entered nunc pro tunc against the sureties, for the debt as well as the costs. Held, that the Court had the power to do so, if in their discretion they thought it right, and that this Court could not revise such discretionary power.

The case of Gregory v?? Haughton, 1 Dev. 442, cited and approved.

Appeal from the Superior Court of Law of Moore County, at the Spring Term 1846, his Honor Judge DICK presiding.

The facts of the case are the following:

Beason obtained a judgment against Brady before a justice of the peace, which the latter removed into the Superior Court by recordari; and there the judgment was affirmed. Under the statute, which allows in such a case a summary judgment against them, the Court on the motion of Beason, then ordered judgment to be entered for the debt and costs against the plaintiff in the recordari,and the sureties in the bond given for the prosecution of it; but the judgment was entered by the clerk, as a judgment against the plaintiff for the debt and costs, and against the sureties for the costs only. The mistake having been discovered, Beason moved, at the next term, to have it corrected; and the Court then ordered, that the entry of the preceding term should be corrected and made to read as a judgment against both Brady and the sureties for the debt and costs; and the same was accordingly done. Beason then sued out a fieri facias, in which the name of one of the sureties against whom the judgment was rendered, was omitted. At the return of it the sureties moved to set aside, and to vacate the entry of the judgment, upon the ground that the judgment as it now stood against them was void, by reason of its alteration as before stated. The Court set aside the execution for the variance from the judgment, but refused to vacate the judgment, and the sureties appealed.

Winston, for the plaintiffs .

Strange, for the defendant .

RUFFIN, C. J.

The consideration of this Court is confined to the question of power in the Superior Court; for, if it exist, its exercise is within the discretion of the judge, which this Court cannot control. Perhaps it may be found...