14 N.C. 150 | N.C. | 1831
There seems to he no doubt, that defects in judgments may be amended as to matters within the statutes,., after they are rendered, and even after
Correlative to this power is that of setting aside all irregular process and proceedings. This has been often done -with respect to all parts of the proceedings, from the leading to the final process — the court taking care to exercise the power upon proper oases, and when applied for in due time, and before the irregularity has beeu cured by other steps taken in the cause. Office judgments, by which I mean those signed by the plaintiff in the course of the court, without any actual adjudication by the court, must necessarily be held to be under the future control of the court, when any thing improper is made to'appear in them. As to them, the authority of the courtis not restricted to the term in which they arc rendered ; for if if were, it would amount to no thing,since neither the court nor the defendant knows ofthematthattime. Strong examples of this sort are judgments taken for usurious debts upon warrants of attorney. And many other instances are given in Tidd’s Practice 614, of judgments by default being set aside for irregularity ; and among them, signing such a judgment before the appearance of the defendant, and before regular service of the process. Courts then have
But it is said here, that the defendant appeared, and appearance .dispenses with a writ; and much more with the service of it. True, such is the effect of appearance; and if a court of error were passing upon the record of the suit in the County Court, in its original state, the judgment could not be reversed, because the defendant Bender did not appear to be in court. But that is not the question here. It is, whether that court is precluded from inquiry into the fact, whether he did appear or not, for the purpose of determining, whether or not the office judgment signed against him was regular. And upon that question there can be no doubt, as long as it is conceded, that a judgment may he set aside for irregularity 5 for that necessarily implies the capacity to ascertain, whether in fact the. irregularity was committed.
It would seem from an inspection of the record of the ;County Court, that there was no appearance by Bender: for at the very term, at which the attorney enters .his .appearance for the defendants, an alias capias is awarded against Bender, which shows that the. appearance was .for the other two.
But this court does not enter into that. This is not an appeal from the order setting aside the judgment. In this collateral way, the propriety of that order cannot he examined, unless it be absolutely void. It is not void ; for j?i proper cases, all courts can and ought to exercise that jurisdiction j and when they have done so, another court cannot, collaterally, disregard the act, unless the power be denied in all cases. Here, therefore, we do not inquire, whether the-County Court exercised its discretion properly in this particular case, hut whether that court possesses the power in any instance. If it does, then this must be taken to be proper, while it stands.
WhatiSjthe effect upon the present action, of the order of the County Court ? Very clearly it is, to prevent the defendant from justifying, under the judgment and execution. (Philips v. Biron, 1 Strange 509. King v.
Per Curiamst — Judgment reverse®..