Opinion
August Term, 1849.
When a witness has been summoned to attend at court, though a verdict may be rendered in the cause, yet if a new trial is granted he is bound to attend the subsequent terms until a final decision, without a new subpoena.
APPEAL from the Superior Court of Law of HAYWOOD, at Fall Term, 1848, Manly, J., presiding.
This was a scire facias against a defaulting witness, to which he pleaded that he had not been summoned. Upon the trial the case appeared to be this: The plaintiff had brought an action against one Dillard, and the defendant was duly summoned as a witness in his behalf. He regularly attended at the different terms of the Superior Court of Haywood, where the action was pending, up to the Fall Term, 1847, when the cause was tried and a verdict rendered. Subsequently, at the same term, the verdict was set aside and a new trial granted. At the Spring Term, 1848, the witness, the defendant in this scire facias, was called, and, failing to appear, a judgment nisi was rendered against him for the penalty of $40, given by the act of the General Assembly. This scire facias was issued to the defendant to show cause why final judgment should not be rendered against him. A verdict and judgment were rendered for the plaintiff, and the defendant appealed.
Henry for plaintiff.
Edney for defendant.
We perceive no error in the judgment appealed from. The defendant alleges that after the trial and verdict at the Fall Term, 1847, he was not bound to attend until resummoned. The statute which gives the penalty against a witness, duly summoned, for not attending the terms of the court, also points out his duty. It declares he shall appear and continue to attend, "from time to time, until discharged either by the court or the party at whose instance he is summoned." The plea is, the defendant was not under subpoena; the case states he was summoned. It is pretended he was actually discharged, either by the court or the plaintiff at whose instance he was summoned; but it is insisted that, by the verdict, the case was out of court and the witness legally discharged. The premises not being correct, the conclusion from them cannot be sound. By the verdict, the cause was not out of court, and while the term continued it was in the power of the court to reinstate it, as it was before the trial; and after the new trial was granted it was, to every intent, the same cause, and the defendant was bound to take notice of it and attend under his subpoena until duly discharged. This principle has been considered settled ever since the case of Sweany v. Hunter, 5 N.C. 180, tried in 1808, upwards of forty years since.
PER CURIAM. Judgment affirmed.
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