Hare v. Parham
| Citation | 49 N.C. 412,4 Jones 412 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 30 June 1857 |
| Parties | L. H. HARE v. WILLIAMSON PARHAM, Adm'r. |
Where a warrant has been brought against an administrator for the debt of his intestate, and the justice before whom it is returned, renders a judgment against him individually, it is error, for which a recordari, in the nature of a writ of error, is a proper remedy.
The general rule is, in such a case, simply to reverse the false judgment; but where it appears that the plaintiff was entitled to a judgment against the assets in the hands of the administrator, the Court will order the case back to the Superior Court, that the question of assets may be tried.
THIS was an action of DEBT, tried before BAILEY, Judge, at the Fall Term, 1856, of the Superior Court of Granville.
It had been commenced before a justice of the peace, on a warrant, and was brought against the defendant as administrator of one Hester, on a bond made by the intestate. The justice of the peace, who tried the warrant, rendered a judgment against the defendant, in his individual capacity, with a stay of nine months. The defendant obtained a recordari to have the same reversed for error, and the record of the case was made and certified into the Superior Court. The plaintiff filed affidavits to show that the debt was just, and that the defendant had voluntarily submitted to the judgment rendered. The defendant, on the other hand, filed affidavits to show that the judgment was rendered against his consent, and from ignorance on the part of the magistrate, who, it was alleged, only intended to enter a suggestion of a want of assets, and to give the defendant nine months to plead. On consideration of the case in the Superior Court, his Honor dismissed the certiorari, and gave judgment against the defendant for the debt, from which the latter appealed to this Court.
Miller and Graham, for plaintiff .
Winston, Sen., for defendant .
It is apparent, to us, that the judgment of the Superior Court is erroneous, and must be reversed. The error seems to have arisen from the Judge in the Court below having treated the writ of recordari, in this case, as an attempted substitute for an appeal. It could be so treated, only, when the party had been improperly deprived of his right of appeal, or had lost it by accident or mistake, without any default on his part. There is no allegation of facts, made in the petition, upon which the application for the writ was founded, that the petitioner ever applied to the magistrate to be allowed an appeal, or that he was prevented from appealing by the misconduct or fraud of the opposite party. The petitioner has not stated any case which entitled him to have his cause placed upon the trial docket of the Superior Court as upon an appeal. The real ground of complaint, as set forth in the petition is, that the magistrate, “from not understanding his duty, in the premises, and the proper form of proceedings in such cases, had rendered a judgment against him which is false and erroneous.” This is one of the cases, then, in which the recordari has been applied for, to be used as a writ of false judgment; and that it may be so used, in this State, cannot be doubted. See Parker v. Gilreath, 6 Ire. Rep. 221, and Hartsfield v. Jones, (49 N.C. 309). Such being the nature of the cause, the affidavits taken in it, were unnecessary, as they could not properly be considered in the Superior Court. In that Court, the plaint, as recorded by the magistrate, was the only subject for review, and upon such review, the judgment ought to have been affirmed, if right, or reversed, if erroneous. 3 Bouvier's Inst. 560. That it was erroneous, and ought to have been reversed, cannot admit of a doubt. The warrant was against the defendant as administrator, and the judgment was rendered against him individually, which was clearly wrong. Shearin v. Neville, 1 Dev. and Bat. Rep. 3. The order of the Superior Court dismissing the petition, and the judgment given thereupon against the defendant and his sureties, are erroneous, and must be reversed,...
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