25 N.C. 440 | N.C. | 1843
At common law there is no form of an entry in the books of a judgment dismissing an action. Every judgment against a plaintiff is either upon a retraxit, non pros., nonsuit, nolle prosequi, discontinuance, or a judgment on an issue found by the jury in favor of the defendant, or upon demurrer. The inducements or preliminary recitals in these several kinds of judgments are variant, but the conclusion in each is always the same; it is as follows: "Therefore it is (442) considered by the Court that the plaintiff take nothing by his writ, *301
and that the defendant go without day and recover of the plaintiff his costs, etc." If the entry above mentioned could be considered as aretraxit, or a final judgment on the merits, it would bar the plaintiff's action; otherwise it would not. A retraxit it cannot be, for that is always made in person in open court, when the trial is called. 2 Arch. Prac., 250; 3 Thomas Coke, 500. The issue upon the plea of "release" in the County Court, was not tried by a jury; so that the said entry could not be considered a judgment upon a verdict. The entry does not show that the merits of the cause passed in rem judicatum. We know of no reported case like it in this State. We must, however, consider it as nothing more than a judgment of discontinuance, where the Court erred in ordering the defendants to pay the costs, or it is such a judgment, with the consent of the parties that the defendants should pay the costs. Carter v. Wilson,
Secondly, in the absence of all other proof, we think that the entry of the payment of the costs by the defendants was not even prima facie evidence, to be left to the jury, of an accord and satisfaction. The above cited case of Carter v. Wilson supports this opinion.
PER CURIAM. No error.
Cited: Trice v. Turrentine,
(443)
