93 N.C. 439 | N.C. | 1885
We are of opinion that the order of the Superior Court was erroneous. The defendant was duly served with a summons in the action before the justice of the peace. The latter had jurisdiction of the defendant and the subject matter of the action, and therefore had power to grant the judgment. If the judgment was rendered in the absence of the defendant, and such absence (441) was caused by sickness, excusable mistake or neglect of the party; in such case, upon proper application within ten daysnext after the date of the judgment, the justice of the peace might have reheard the case as allowed by The Code, sec. 845; but after the lapse of that time he had no authority to rehear it or set the judgment aside for such cause. A new trial cannot be allowed in a justice's court; in case of dissatisfaction with his judgment the party dissatisfied may appeal to the Superior Court where there will be a new trial of the whole matter in controversy. The Code, secs. 865, 880; Froneburger v. Lee,
The defendant insists, however, that he was deceived and misled by the justice of the peace, who informed him, in substance, shortly before giving the judgment, that he would not do so, and that, acting upon such assurance, he was not present at the time, and place fixed for the trial and when the judgment was given; that he did not hear of the judgment for several years after it was given, and therefore he could not apply within the time prescribed for a rehearing nor could he appeal. But it was his folly or misfortune to act upon the assurance; he was a party defendant to and had the notice of the action; it was his duty as well as his right to see what judgment was rendered by the justice of the peace. If he had been diligent and watchful of his rights as a litigant he might have made a successful defense or, failing in this, he might have appealed to the Superior Court. McDaniel v. Watkins,
If the defendant was misled and surprised as he alleges, and there was excusable neglect, as it seems there was, he could not have redress by a motion to set the judgment aside. To set it aside would imply necessarily the granting of a new trial, and, as we have seen, a justice of the peace cannot grant a new trial.
The defendant was not without remedy. If the judgment was fraudulent, then his remedy was by a proper action to have it declared (442) void. If there was excusable neglect, and he had diligently pursued his remedy, he might have had relief by means of the writ of recordari as a substitute for an appeal. We do not, however, mean to suggest that he may yet have such relief. As to that, we are not at *379
liberty to express an opinion. No question in that respect is before us.Caldwell v. Beatty,
There is error. The order of the Superior Court reversing the order of the justice of the peace denying the motion and setting the judgment aside must be reversed.
Error. Reversed.
Cited: King v. R.R.,
