65 N.C. 393 | N.C. | 1871
The facts were, that at Fall Term, 1869, the present plaintiff upon the relation of the State of North Carolina obtained judgment against the defendant White and others, on the official bond of said White as Sheriff of Chowan County. The suit was instituted in the year 1861, and tried upon the issues presented by the defendant's pleas, to wit: "Covenants performed and no breach."
In August, 1868, the defendant, Bond, filed his petition in bankruptcy, and received his certificate of discharge some time in 1869. The bankruptcy of said defendant was not suggested during the pendency of said suit, nor after he received his certificate of discharge from the Court of bankruptcy did he plead the same, at or before the rendition of judgment in this case, but from facts not necessary here to state he was led to believe that anol. pros. had been entered as to him.
It is conceded that the motion to set aside said judgment shall be regarded as made within the time prescribed by law.
His Honor refused to allow the motion, upon the ground that (394) he had no power to grant it, from which ruling the defendant
White appealed to the Supreme Court.
1. A motion in the cause was the proper course. Caldwell v. Bank, Masonv. Miles,
Objection not raised in the pleadings can be taken ore tenus, Council v.Rivers,
2. Equity would not relieve upon the facts contained in the complaint. 2 Story's Eq. Jur., sec. 1572, 1573, 1574.
A Note taken by a bank in payment of a pre-existing debt is not discounted. etc. Bank v. Hewett,
In this case the motion was made more than a year after its rendition; but it was agreed to be considered as if it had been made within time. So there is no difficulty about that.
His Honor heard evidence as to the facts under which the judgment was rendered; and refused to set it aside because he supposed he had not thepower.
What were the facts, was a question exclusively for his Honor. In such cases the Judge is the trier of the facts, as the jury is in ordinary cases; and from his finding there is no appeal.
After hearing the evidence and finding the facts, it is discretionary with the Judge, to set aside the judgment or not; and from the exercise of his discretion, there is no appeal. But this must be understood with the qualification, that it is not altogether an (395) arbitrary discretion; for, if in ascertaining the facts, or exercising his discretion, he make a mistake of the law, that mistake can be appealed from. As, for instance, if competent evidence be offered and rejected; or, if he mistake the meaning of the statute as to what is, "mistake, inadvertence, surprise, or excusable neglect." In such case he may be reviewed; because that is not the exercise of a discretion, but a misapprehension of the law; and no one has a discretion to misapply the law. So, in the case of an application for the removal of a case, the Judge has a discretion, the exercise of which we cannot review, unless it appear that some principle of law is misconceived and misapplied.
In the case before us, his Honor did not exercise his discretion upon the merits, but supposed that he had no "power" to set the judgment aside, even if the merits required it. Whether he had such power, is a question of law. We think he had the power.
There is error. Let this be certified. *304
Per curiam.
Error.
Cited: Clegg v. Soapstone Co.,
