Cowles v. Hayes

• Decision Date: 30 June 1873
• Citation: 69 N.C. 406
• Court: North Carolina Supreme Court
• Parties: A. C. COWLES, Adm'r v. P. HAYES and T. N. COOPER.

69 N.C. 406

A. C. COWLES, Adm'r

v.P. HAYES and T. N. COOPER.

Supreme Court of North Carolina.

June Term, 1873.

An irregular judgment may be set aside at any time, and an injured party is not confined to a year after he has notice of it. A motion to vacate such judgment is the proper course to pursue, giving the opposing party notice of such motion.

( Keaton v. Banks, 10 Ired. 381, cited and approved.

MOTION to set aside a judgment, heard before Mitcllell, J., at the Spring Term, 1873, of IREDELL Superior Court.

The plaintiff on the 27th day of January, 1873, gave the the defendants notice that he should move at the next term to set aside a judgment theretofore rendered against him, and re-instate the suit on the docket.

The facts as found by his Honor are: The plaintiff, as administrator of one James Howard, caused a summons to be issued and returned before a Justice of the Peace on the 12th day of February, 1870, against the defendants, to recover $156.65, alleged to be due by a note given by defendants at a sale of the intestate's property in the Spring of 1865, and before the close of the war. The plaintiff contended that the note was not liable to scale, but on the return day of the writ, the 12th of February, 1870, the Justice in the absence of the plaintiff, gave judgment for him against the defendants according to the scale, for $4.06 and for costs. From this judgment the plaintiff appealed, and the Justice sent up the papers to the Judge (without evidence), under section 539, C. C. P., and on the 20th day of August, 1870, the Judge at Chambers, (plaintiff being absent,) affirmed the judgment of the Justice, and from which judgment of affirmation the plaintiff did not appeal; but on the 20th of September, 1870, the plaintiff filed his petition for a recordari, alleging the facts as stated, and alleging that he arrived at the place of trial before the Justice, before 11 o'clock on the day of trial, (which his Honor found to be true,) with witnesses to prove the value of the property for which the note was given, but that the Justice had already given judgment according to the scale, and refused to open the case or grant a new trial, and that the case had never been heard upon its merits. His Honor thereupon ordered the writ of recordari to issue, which issued 17th September, 1870, and at Spring Term, 1872, on motion, ordered the case to be put upon the civil issue docket for trial. The defendant appealed to the Supreme Court, and at Fall Term, 1872, the certificate of that Court in said case being filed in the Superior Court of Iredell county, the recordari was dismissed.

The plaintiff having previously given the defendants notice at Spring Term, 1873, (having made the same motion at Fall Term, 1872, which was referred for want of previous notice to defendants,) moved to vacate the judgment rendered by his Honor at Chambers, on the 20th of August, 1870, as being irregular and contrary to the course of the Court, and to cause the said appeal from the Justice to be placed on the civil issue docket of said Court for trial. His Honor vacated and set aside the judgment, and ordered the cause to be placed on the civil issue docket for trial at the next term.

From this judgment, defendants appealed.

Bailey, for appellants , submitted the following brief:

1. The notice is insufficent for vagueness.

2. Irregularity waived by want of promptness in making the motion. McEvers v. Markler, 1 John Cases 248; Nichols v. Nichols, 10 Wend. 560. This principle has always been applied to the analogies of certiorari and recordari, and ignorance of the practice is no excuse. Moreland v. Sanford, 1 Denio 660.

3. Sec. 133, C. C. P., is a substitute for the former practice touching the vacating of judgments, and is exclusive. The relief moved for is not obtainable under this section, as the application is not made within one year after notice (the petition for recordari, which avers notice having been filed 20th September, 1870).

4. The ground of an appeal was an error in law. Such an error was either patent or latent, and might be manifested to the Judge in two ways: (1.) Where it appears on the face of the proceedings. (2.) By affidavit. This was admissible under the old practice in certain cases, Ferrell v. Underwood, 2 Dev. 111; Carr v. Woodliff, 6 Jones 400, because not records, and this Court has decided that Justice's proceedings under the new system are not records. Had the supposed error in law been manifest, his Honor, it is submitted, should have taken one of two courses: (1.) Held that there was no error, and affirmed the judgment, or, (2. That there was error, and reversed the judgment and ordered a procedendo. Why put it on the civil issue docket? If a plaintiff, merely because it is his appeal, has the absolute right to have it put on the civil issue docket, without regard to the character of the issue, it is submitted the constitutional jurisdiction conferred on Justice's courts is swept away; for then all a plaintiff has to do is to fail to appear at the trial, (as in our case,) or to fail to bring forward (of purpose) evidence to sustain his claim, and on being defeated, appeal; and thus by an obvious artifice, the policy of the Constitution, the current legislation approved by this Court ( Hedgecock v. Davis, 64 N. C.) in confining trivial litigation to Justice's courts will be defeated! It is submitted that so far from encouraging such a practice, the Courts should be astute to nip it in the bud.

5. The plaintiff by failing to appear at the trial according to the express provision of the Code, waived a jury trial. C. C. P., sec. 520. So that the appeal stood like an appeal under the old system,...