53 S.E. 445 | N.C. | 1906
This is a summary proceeding in ejectment instituted in a justice's court. The cause came on for trial before Spurgeon Jones, J. P., on 7 January, 1905, and was removed upon affidavit to Alex McMillan, J. P. Prior to the return day of the summons, the said Spurgeon Jones, J. P., issued a writ removing the defendant from possession of the premises in controversy and placing the plaintiff in possession. The writ was served on 5 January, by putting out of possession defendant, Sandy Edwards, and putting into possession the plaintiff, D. J. Bullard. *483
On 7 January, 1905, in the absence of the defendant, (645) Alex McMillan, J. P., tried the case and rendered judgment that the plaintiff was the owner and entitled to the immediate possession of the premises. Within ten days thereafter, Jas. H. Johnson, Esq., attorney for the defendant Edwards, wrote a letter to the said justice of the peace, stating that the defendant was not notified that the trial would be had on 7 January, and that he and the defendant would have been ready and willing to attend said trial, if they had been notified; that the officer of the court had promised to notify the defendant when the said Alex McMillan would hear the case, and had not done so. Thereupon Alex McMillan notified J. H. Johnson, Esq., attorney for the defendant, that he would open the case for reconsideration, and to send him an affidavit setting forth the facts, in regard to the absence of the defendant and its cause. The affidavit which contained the foregoing statement of facts, was sent to Roderick McMillan, a brother of the justice of the peace, and was received by him on 17 January, and he forwarded it to Alex McMillan, who received the same on 19 January. After the affidavit of J. H. Johnson, Esq., was received, the said justice had the parties and witnesses notified to appear before him on 26 January, when the case would be reheard and the same proceedings had as if the case had never been acted on. There is no evidence that any summons, subpoena or other written notice was served upon the parties or the witnesses.
On 26 January the plaintiff appeared before the justice and filed an affidavit for a continuance until 2 February, which was granted. On the second day of February, both plaintiff and defendant were present, and the plaintiff filed with the court what is called a demurrer to the affidavit of J. H. Johnson, Esq. The demurrer, omitting unimportant parts, is as follows: "1. That said affidavit was not filed within ten days from the rendering of the judgment, said judgment having been rendered on 7 January, 1905, and said (646) affidavit was not filed until 19 January, 1905, which was more than ten days thereafter. 2. That said affidavit and prayer was made to Roderick McMillan, and not to this court. 3. That it does not state facts sufficient to warrant the court in reopening the case. 4. That it was the duty of the defendant and not of the court to have notified his counsel, and it was also his duty to have been diligent and to have known where said trial was to be had." The justice overruled the plaintiff's demurrer and ordered that the possession of the property be restored to the defendant. Plaintiff appealed. *484
At the hearing in the Superior Court the judgment of the justice, rendered on 2 February, 1905, was reversed and set aside, and the defendant taxed with the costs. He excepted and appealed.
The law requires that when a judgment has been rendered by a justice of the peace, in the absence of either party, and the absence was caused by his mistake or excusable neglect, he may, within ten days after the date of the judgment, apply for relief to the justice by affidavit setting forth the facts. If the affidavit, which must be filed with the justice, is deemed by him sufficient, he shall rehear the case and shall cause the parties to be notified of the time and place appointed for the rehearing. Code, sec. 845; Revisal, sec. 1478. It will be seen that, in order to give the justice jurisdiction to open and rehear the case, the party against whom the judgment was given must make his application by affidavit within ten days after rendition of the judgment, which was not done by the defendant in this case. The statute, as we think, can have but one meaning, namely, that the affidavit, which is the (647) form provided for making the application, must be filed within ten days. The case is governed in this respect by Guano Co. v. Bridgers,
The defendant does not appear to have been diligent in taking care of his interests. The cause was removed at his request and he made no inquiry of the justice, who then had acquired jurisdiction in the case by removal, as to when it would be tried, but relied upon the assurance of the officer for such information. The failure of the officer to keep his promise, was defendant's misfortune and not the plaintiff's fault, and he must take the consequences of his misplaced confidence, as we said in Guano Co. v.Bridgers, of similar conduct on the part of the defendant in that case. The judgment was rendered on 7 January, the very day the case was removed, and no inquiry was made of the justice, as far as appears, for some days afterwards as to when he would try the case or as to what had been done. This was not due diligence. McDaniel v. Watkins,
No Error.
Cited: Woodard v. Milling Co.,
(649)
