Opinion
(December Term, 1860.)
Where the principal obligor in a ca. sa. bond was called, and, failing to appear, judgment was rendered against his surety, it was Held, that the fact that the principal was sick and unable to attend at the term for which he was bound did not entitle the surety to a certiorari to have the case removed into the Superior Court.
PETITION for a certiorari, heard before Dick, J., at Fall Term, 1860, of ROWAN.
Boyden for petitioner.
Blackmer for defendants.
The petition discloses the following state of facts. The defendants, Arnold and Cooley, recovered a judgment in the county court of Rowan against one Wilson Williams, upon which judgment a ca. sa. issued against him, and the petitioner Buis became surety upon the ca. sa. bond, which bond was returnable to August term of the court. At that term the cause was continued to November term, at which last mentioned term the principal Williams being called and failing to appear, judgment was rendered against the petitioner upon the ca. sa. bond. It was proved by the deposition of Williams' wife that he was confined to his bed by sickness during the whole of November term of Rowan County court. Williams lived in Charlotte, where he was during his sickness. Upon the hearing of the petition, and upon consideration of the case of Osborne v. Toomer, 51 N.C. 440, the court was of opinion with the defendants and, accordingly, dismissed the petition. Petitioner appealed.
Betts v. Franklin, 20 N.C. 602, is a direct authority in support of the order of the Superior Court dismissing the certiorari. In that case, the parties to a ca. sa. bond, conditioned for the appearance of the principal obligor in the county court, to take the benefit of the act for the relief of insolvent debtors, were called, and failing to appear, judgment was entered against them, and it was held that the sureties were not, upon the allegation of having been prevented (234) by the fraud of the plaintiff's agent from making a surrender of their principal in discharge of themselves, entitled to the writ of certiorari, to enable them to make it in the Superior Court. That case was a stronger one in favor of the applicants for the certiorari than the present, because the failure of the principal obligor to attend and surrender himself or be surrendered by his sureties, was alleged to have been caused by the fraudulent conduct of the plaintiff's agent; and this Court intimated that the county court might possibly in such a case be authorized to give relief by vacating the judgment. But in the present case, where the principal was prevented from attending the county court by sickness, no such relief can be given. Sickness of the principal obligor may be such as to excuse his nonattendance and furnish a good cause for the continuance of the suit, but if he and his surety neglect to have the suit continued, and a judgment be regularly entered up against them, on account of the failure of the principal obligor to appear, it cannot be vacated at a subsequent term. Such was the decision of this Court in Osborne v. Toomer, 51 N.C. 440, in which it appeared that both the principal and his surety were sick and unable, on that account, to attend the term of the court at which the judgment was rendered. We admit that the present may be a hard case, and so said the Court was that of Osborne v. Toomer. But, however hard the case may be, the Court does not perceive any ground on which the surety can be relieved. The extreme sickness of the principal at the time would have excused his nonappearance, and entitled him and his surety to a continuance under section 10 of the statute, if that had appeared to the Court. (Rev. Code, chap. 59, sec. 10.) But that was not made to appear, and therefore the court could not properly have continued it. That was the fault of the party; for although the sickness might have excused the debtor for not appearing and the surety for not bringing him in, yet it furnished no reason for not appearing by attorney and showing by witnesses their inability to attend (235) in person. They might, in that manner, have shown their right to a continuance, and having failed in that, there is now no help for them.
PER CURIAM. Affirmed.