Dick v. McLaurin

• Decision Date: 31 January 1869
• Citation: 63 N.C. 185
• Court: North Carolina Supreme Court
• Parties: R. P. DICK and J. W. DICK, Adm'rs v. JOHN C. McLAURIN and R. D. DICKSON.

63 N.C. 185

R. P. DICK and J. W. DICK, Adm'rs

v.JOHN C. McLAURIN and R. D. DICKSON.

Supreme Court of North Carolina.

January Term, 1869.

The judgment to be entered by default against a part of numerous defendants, others, of whom plead, or are not taken, is, according to the course of the Court, only interlocutory; therefore,

Where a writ (in assumpsit upon a note) against seven, was returned to Spring Term 1867, executed upon five; and at the return term, three of those taken entered pleas, a judgment final by default was taken against the other two, and at the same time, an alias writ was ordered against those not taken;

Held, upon application by the parties against whom judgment had been taken, made at Spring Term 1868, that such judgment was irregular, and should have been set aside so far as it was final; and allowed to stand as an interlocutory judgment.

( Keaton v. Banks 10 Ire. 381; Skinner v. Moore 2 D & B. 138; Governor v. Welch 3 Ire. 249; Price v. Scales 2 Mur. 199; Weed v. Richardson, 2 D. & B., 535, cited and approved.)

MOTION to set aside an irregular judgment, made before Barnes, J. at Spring Term 1868, of the Superior Court of CUMBERLAND.

The plaintiffs had sued out a writ against seven persons, including McLaurin and Dickson, returnable to Spring Term 1867. It was returned executed against five, of whom McLaurin and Dickson are two. At the return term, three of those taken entered pleas; and at the same time a final judgment by default was entered against McLaurin and Dickson, and further process ordered against those not taken.

At Spring Term 1868 a nol. pros. was entered as to the two not taken, and upon motion, made after due notice, the judgment at Spring Term 1867 was set aside, as irregular.

The plaintiffs thereupon appealed.

Hinsdale, for the appellants .

B. Fuller, contra .

1. The judgment was an office judgment, and so, under the control of the Court. Keaton v. Banks 10 Ire. 381, Williams v. Beasley 13 Ire. 112, Cannon v. Beeman 3 Dev. 363.

2. No appeal lies from an exercise of discretion, State v. Lamon 3 Hawks, 175; or from a finding of facts by the Court below, State v. Raiford 2 Dev. 214. See Phillipse v. Higdon Bus. 302; Davis v. Shaver, Phil. 18.

RODMAN, J.

There can be no doubt of the power of a Court to set aside an irregular judgment at any time after it is rendered. Keaton v. Banks, 10 Ire. 381. It is equally clear that the exercise of such a power is the subject of appeal. The irregularity of a judgment is matter of law, and to have an irregular judgment set aside, is the right of every party injured by it; it is not a matter of judicial discretion.

Was the judgment in question irregular? An irregular judgment is one entered against the course and practice of the Court, Skinner v. Moore, 2 D. &. B. 138. The plaintiff's writ was returned to Spring Term 1867, executed on five of the seven defendants. At that term two of the defendants pleaded; judgment by default final was entered against John C. McLaurin and R. D. Dickson, who procured the order appealed from; and alias process was ordered to issue against two of the other defendants, upon whom the first process had not been executed.

We think it was irregular. The plaintiff was not entitled to take a judgment by default final, against two of the defendants, when two others pleaded, and he kept his process running against two others. In England, a plaintiff is not even entitled to serve one of several defendants who appears, with a declaration, until he has run his process to outlawry against the others; and if he do so, and the writ be bailable, the other may immediately sign judgment...