Reynolds v. Boyd
| Decision Date | 30 June 1840 |
| Court | North Carolina Supreme Court |
| Parties | JOHN REYNOLDS v. WILLIAM BOYD. |
A Superior Court cannot entertain an appeal to revise the exercise of a discretionary power by an Inferior Court, when the decision of the latter is made as a matter of discretion; but if the decision were made as a matter of strict right, and upon the supposition that the inferior tribunal had no discretion, it will be reversed, and the inferior court ordered to proceed in the cause in the exercise of its sound discretion.
When the principal obligor in a bond given for his appearance at the County Court, to take the benefit of the act for the relief of insolvent debtors, is regularly called at court, and, failing to appear, judgment is rendered against him and his surety in the bond, the surety has no right ex debito justiciæ, to come in on a subsequent day of the term, and have the judgment set aside, in order to allow him to make a surrender of his principal. In such case, the court may, undoubtedly, in the exercise of a sound discretion, set aside the judgment and allow the surrender; but it is not obliged to do so, and ought not to do so, but upon good cause shewn, as that the party has a good defence, and was kept away by accident or misfortune.
The defendant was arrested under a capias ad satisfaciendum, and gave a bond with security, to make his appearance at the ensuing term of the County Court of Buncombe, to take the benefit of the act of 1822, (1 Rev. Stat. ch. 58, sec. 7,) for the relief of insolvent debtors. The ca. sa. and bond were duly returned to court, and, on Tuesday of the term, to which he was bound to appear, the defendant was called at the door of the court house; and, failing to appear, judgment was rendered against him and his surety on the bond. On Thursday of the term, the agent of the surety proposed to surrender the defendant, and have the judgment set aside. The plaintiff objected, on the ground that unless he could shew good cause for his absence, the surety had not the right to remain out of court until the latter part of the term; and, after the plaintiff had obtained judgment, then to surrender the defendant and vacate the judgment. The court were of opinion that, as the whole term was considered as one day, the surety was entitled to the whole term to make the surrender, without shewing why he had not appeared at the first of the term; and ordered that the surrender be recorded, and the judgment be rescinded. From this judgment the plaintiff appealed to the Superior Court; and it was agreed that the question of law as to right of the surety, ex debito justiciæ, to surrender his principal at any time after the rendition of the judgment during the term, should be presented, upon the above statement of facts, without prejudice to either party on account of any discretion in the court below. In the Superior Court, his honor Judge HALL was of opinion that the County Court erred in supposing that the surety had a right, ex debito justiciæ,...
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