King v. Wilmington & W. It. Co

• Decision Date: 28 February 1893
• Court: North Carolina Supreme Court
• Parties: KING v. WILMINGTON & W. It. CO.

16 S.E. 929

112 N.C. 318

KING

v.WILMINGTON & W. It. CO.

Supreme Court of North Carolina.

Feb. 28, 1893.

Setting Aside Judgment—Recordabi—When Lies.

1. Code Civil Proc. § 545, provides that writs of recordari, etc., are hereby authorized as heretofore in use. At common law prior to the adoption of the Code, recordari was used either as a substitute for an appeal lost without fault of the party, or as a writ of false judgment when the justice was without jurisdiction. Held that, where judgment is entered in justice's court without service of summons on defendant, recordari lies to review such judgment in the superior court. Whitehiirst v. Transportation Co., 13 S. E. Rep. 937, 109 N. C. 344, distinguished.

2. A final judgment entered in justice's court can be set aside on the ground of fraud and collusion between the justice and others only in an independent action.

3. Code, § 876, providing for an appeal from a justice in 15 days after notice of judgment in cases where "the process is not personally served, " applies only in cases where the service is by publication.

Appeal from superior court, Pitt county; Henry R. Bryan, Judge.

Action in justice's court by R. W. King against the Wilmington & Weldon Railroad Company. Plaintiff had judgment by default, and defendant petitioned to the superior court for a writ of recordari for a review of the judgment, on the ground that defendant was not served with summons. The petition was dismissed, and defendant appeals. Reversed.

John L. Bridgers and Jas. E. Moore, for appellant.

Don. Gilliam and T. J. Jarvis, for appellee.

Clark, J. The amended petition for recordari avers that there was no service of summons upon the defendant or its agent. If so, the judgment could be set aside at any time upon motion before the justice of the peace who tried the cause, or his successor in office. Whitehurst v. Transportation Co., 109 N. C. 344, 13 S. E. Ren. 937. His honor, being of opinion that this was the only remedy, dismissed the petition. The defendant contends that, at its election, it was entitled to have the writ of recordari, in the nature of a writ of false judgment. This is the principal question in the case.

At common law, and up to theadoption of the Code of Civil Procedure, the writ of recordari served a double purpose, either as a substitute for an appeal lost without default of the petitioner, or as a writ of false judgment, where the justice did not have jurisdiction, or when judgment was taken without service of process. The original Code of Civil Procedure of 1868, by section 296, (now Code, § 544,) abolished writs of error and substituted appeals, but did not provide for writs of certiorari and recordari, as was pointed out by the court in Marsh v. Williams, 63 N. C. 371. And thereupon the act of 1874- 75 (now Code, § 545) was enacted, as follows: " Writs of certiorari, recordari, and supersedeas are hereby authorized as heretofore in use. The writs of certiorari and recordari, when used as substitutes for an appeal, " etc. From this it would seem that the writ of recordari was authorized to the extent it had been "heretofore in use, "and extended to cases other than "when used as substitutes for an appeal." But we are not without express decisions upon the point. In Weaver v. Mining Co., 89 N. C. 198, Smith, C. J., says: "The writ of recordari, under the former practice, and retained in the new, as has been often declared, is used for two purposes: the one, in order to have a new trial of the case upon its merits, —and this is a substitute for an appeal from a judgment rendered before a justice; the other, for a reversal of an erroneous judgment, performing in this respect the office of a writ of false judgment. " In McKee v. Angel, 90 N. C. 60, where there was a motion made before the justice to set aside the judgment for want of proper service, and an appeal from such ruling, the court held that such course was correct, or the defendant could have had his remedy by a writ of recordari In the nature of a writ of false judgment. Ashe, J., says, in that case: "Thera is no doubt that, as soon as he discovered that such judgment had been rendered against him, [7. e. without service of process,] he might have availed himself of the remedy of a recordari in the nature of a writ of false judgment. But he has failed to resort to that remedy, and has had recourse to a motion before the justice who made the judgment to vacate it. Was it in the power of the justice to do that¹: If it was, it was clearly his duty to do so." The court then go on to cite Hooks v. Moses, 8 Ired. 88, as authority for the latter course. In the following cases since the Code of...