Opinion
December Term, 1849.
Where a party has not been deprived of his appeal from the judgment of a justice, by any fraud, accident, surprise or denial of his right by the justice, he is not entitled to a writ of recordari.
APPEAL from the Superior Court of Law of BEAUFORT, at Fall Term, 1849, Manly, J., presiding.
This was a case of recordari to the Superior Court of Beaufort County.
The affidavit of the plaintiff set forth that the deceased, his testator, married Sally Ann Rispess, the sister of the defendant, to whom she was indebted, and died in a few days thereafter, she surviving him, and that the plaintiff is the executor. That after the death of the testator, James W. Satchwell, the defendant, on 27 September, 1848, caused a warrant to issue against the plaintiff as such executor to recover the said debt, which warrant was served upon him and judgment obtained on 16 October following, as he was informed; that the warrant was served on the plaintiff in the town of Washington, from which place he lived twenty-eight miles, and prays that a writ of recordari and supersedeas may issue, etc. Upon the return of the proceedings in the Superior Court, the defendant's affidavit was filed. After admitting the debt was due from Sally A. Satchwell before her marriage and the issuing of the warrant, and the obtaining of the judgment, he states that the warrant was served on the defendant on 16 October, in the town of Washington; that the plaintiff was, he is informed and believes, not present at the trial, but was in the town at the time of (366) the trial and did not attend, because he did not choose so to do, and consented that a judgment should be taken. The constable, Patterson, in his affidavit swears that when he served the warrant the petitioner looked at and examined the note, and told him to return it at any time and take a judgment upon it; that he asked him if he did not wish to enter some plea or pleas as executor, and he answered he did not, and that he is under the impression the plaintiff remained in town more than one day on that occasion; that he had the judgment in his hands some months, and that the plaintiff promised to pay it. At the Fall Term, 1849, of the Superior Court of Beaufort the plaintiff Satchwell filed an additional affidavit, in which he states he does not certainly recollect, but he thinks it possible he was in town on the day of trial; he did not attend the trial, because his regular counsel, Mr. Hawks, and also Mr. Rodman, whom he occasionally employed, etc., were both absent. When the cause was brought to the notice of the court, a motion was made on behalf of the petitioner to transfer the case to the trial docket, and a counter motion on behalf of the defendant to dismiss the proceedings. The court granted the latter, and the plaintiff appealed.
Biggs for plaintiff.
No counsel for defendant.
In almost every case of a trial before our courts the Legislature has provided a remedy for alleged error, by an appeal to a superior tribunal. This is a right which, in proper cases, cannot legally be denied. If, however, it is denied when it ought to be granted, or from any accident the party complaining has been prevented from attending the trial, or been unable to procure proper sureties within the prescribed and (367) proper time, or, from any fraud practiced upon him, he has been induced to forego or neglect his right of appeal, a superior court will, upon a timely application and proper grounds shown, grant him a writ of certiorari or recordari, as his case may require. (When the court, whose proceedings are sought to be reviewed, proceeds in the matter, not in the course of the common law, and there is no legislative provision for an appeal, the above writs, if not strictly matters of right, are so considered in practice, being issued as matters of course.) In other cases, their ordinary use in this State is as a substitute for the appeal, and, when granted, the case is to be tried de novo. (To entitle the applicant to the benefit of the writ, he must show sufficient reasons for not resorting to the remedy provided for him by the statute; in other words, he must explain satisfactorily why he did not appeal.) The plaintiff in this case has entirely failed to do so. He does not in his affidavit inform us whether he was at the trial or not; but states a fact, unimportant in itself, except as leading to the conclusion that he was absent, to wit, that he lived twenty-eight miles from Washington, where the trial was had, leaving the impression that the distance of his residence from the place of trial was the reason why he did not attend. In this particular the affidavit, to say the least of it, was unfair. Nor does he correct or remove that impression until his second affidavit is filed. The defendant in his affidavit states that the plaintiff was in Washington at the time the trial was had, as he was informed and believes. And the constable, Patterson, swears that at the time he served the warrant he showed the note to the plaintiff, who examined it, and told him to return the warrant at any time and take a judgment; that he asked him if he did not wish to enter some plea or pleas to protect him as executor or otherwise, and that he replied he did not. This affidavit is filed on 23 November, 1849. On the 25th, two days later, the second affidavit of the plaintiff was filed, in which he states he was not present (368) at the trial, and expressly admits he voluntarily absented himself. The reason he assigns is the absence from Washington of the counsel he had employed to advise him in managing the estate of his testator, with whom he wished to consult as to his liability to pay the debt. It is to be remarked that, in this second affidavit, he does not contradict a single statement made by the officer who served the warrant. He chose to absent himself, "trusting (in his own language) that the law would provide a remedy if any wrong was done him." The law did provide him a remedy, which he did not choose to claim. And, as he was not deprived of it by any fraud, accident, surprise or denial of it by the court, he is not entitled to the aid of the writ of recordari. In addition to this, according to the uncontradicted evidence of the officer, by direction and consent of the petitioner, he returned the warrant and took the judgment, which he held several months in his hands, and which the petitioner repeatedly promised to pay. We are not called upon to say anything as to the correctness of the judgment.
The writ was improvidently issued, and the petition properly dismissed.
PER CURIAM. Judgment affirmed.
Cited: Rule v. Council, 48 N.C. 36; S. v. Griffis, 117 N.C. 714.
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