34 N.C. 260 | N.C. | 1851
The question depends upon the legal effect of what was done by the magistrate, and involves the construction of the statute, *182 Rev. Stat., ch. 62, sec. 15. We think the matter was left unfinished, and was not carried out so as to have the effect of vacating and making void the first judgment. We lay no stress on the fact that it does not appear that the defendant was sworn or gave the security required. The magistrate misconceived the power conferred on him by the statute. He had no power upon the ex parte application of the defendant to vacate the judgment. He had power only to issue certain process, the result of which would be, if carried out, a reconsideration or "new trial." If that took place, the first judgment was, of course, vacated. If it did not, then the first judgment remained in full force. Accordingly, the statute directs the magistrate to issue an order to the party or officer who has the papers in possession to forbear all further proceedings, and immediately to bring all the persons before him or some other justice of the peace for "consideration." It further directs him to issue his summons to some proper officer to cause the parties, with their witnesses, to appear before him or some other justice of the peace within thirty days, when "the matter shall undergo a fair investigation." It is this "fair investigation," "reconsideration," or "new trial," which vacates the first judgment; and, of course, if it never takes place, the judgment stands in full force. The magistrate is directed, without inquiry into the merits of the case, to issue process for the purpose of having the parties together. If the party who applies for the process, or one whom he chooses to depend on as his agent, neglects to have it served, and in consequence thereof no "reconsideration" or "new trial" takes place, it is his misfortune. In consequence of his being absent at the trial, if it is sufficiently accounted for, an opportunity is given him to have a new trial, provided he uses the means necessary for that purpose. This meets the necessity of the case. The construction (263) contended for by the defendant goes beyond it, and would lead to injustice, for if the application or order for process had the effect of vacating the judgment, that end being effected, most defendants would not take the trouble to proceed any further; so the plaintiffs would be left to find out by accident that their judgments were void and to get new judgments in the best way they could.
This strange view of the statute no doubt was suggested by a supposed analogy between a new trial before a single justice and a new trial in court. But there is a very great difference. In the one the matter is "infieri" and the parties are "in court" until the end of the term, so that if a new trial be granted the parties are ipso facto put in statu quo." Not so in the other. As soon as the justice gives his judgment he is functusofficio, and the parties are "out of his court," so that nothing can be done to affect the judgment until the parties are brought into "his court" again by a new process. There is a greater analogy to the *183 writ of error. There the parties being "out of court," the judgment is merely suspended until the proceedings are "carried out" and finished by a new judgment.
The judgment below must be reversed, and a judgment for the plaintiff.
PER CURIAM. Reversed.
(264)
