Opinion
June Term, 1850.
1. Where a certiorari is returned to court, no proceedings can be had on it until notice of its return has been given to the person against whom it issued.
2. Where a party who is brought in by certiorari may, upon motion, on the ground of irregularity, have the proceedings dismissed, but he waives that motion and submits to plead to the action, he has a right to do so.
APPEAL from the Superior Court of Law of GUILFORD, at Spring Term, 1850, Battle, J., presiding.
Iredell for plaintiff.
Morehead for defendant.
The defendant gave his bond to one Peebles for $31.34, payable 21 September, 1841, which was indorsed after it fell due to James McNairy, the intestate of the plaintiff. In February, 1846, the plaintiff gave the bond to a constable to collect, and on 14 March, 1846, a justice of the peace gave judgment for the defendant on a warrant on the bond, upon the allegation by the defendant and evidence that it had been paid before the assignment. On 15 October, 1848, the plaintiff obtained a recordari upon his affidavit that the witness who gave evidence of the payment was a person of doubtful character, and that the plaintiff believed his testimony to be false, and that the bond was unpaid and still due; and, further, that the constable omitted to give him any information of the judgment, and that he had no knowledge thereof until the spring or summer of 1848.
The proceedings were brought into court in October, 1848, and, without, any notice served on the defendant, there was an order entered at the next term that the judgment was set aside and a trial in court awarded; and at the succeeding (48) October Term, 1849, the plaintiff, for the want of a plea took a judgment by default final for the debt and interest according to specialty, and thereon issued execution. At Spring Term, 1850, the defendant moved the court to set aside the judgment and execution and allow him to plead. In support of the motion he made an affidavit that no notice of the recordari had been given to him, and that, until the sheriff came with the execution, he was entirely ignorant of anything having been done in the matter after the judgment had been given by the magistrate, and also that he paid the debt to Peebles while he held the bond. A rule was accordingly granted, and on service thereof the plaintiff showed cause against it by his affidavit, that he still believed the debt had not been paid, but was due, and, also, that from the length of time the recordari pended before entering the judgment, he inferred that the defendant had notice of it in fact. The rule was made absolute, and by leave of the court the plaintiff appealed.
The purposes of justice require that judgments by default should be under the control of the court at all times, and be set aside, when signed irregularly and against the course of the court, when there was no regular service of process or other due notice to the party, and without his appearance. Bender v. Askew, 14 N.C. 150. The oath of his person is positive that he had no information of any step taken in the matter for nearly four years after judgment given in his favor; and there is nothing in the record in opposition to that statement. It follows, necessarily, that the judgment could not stand against him. When set aside, the defendant might, indeed, have insisted on the certiorari being dismissed, as (49) having been improvidently granted. For it was the plaintiff's own lookout that his agent should serve him faithfully; and, moreover, his delay in making inquiry into the matter until the expiration of two and a half years after the judgment against him constituted such laches as ought to preclude him from this remedy. The defendant, however, did not insist on that, and was content to be admitted to plead, averring the merits to be with him; and to that there can be no just objection.
PER CURIAM. Judgment affirmed.