65 N.C. 211 | N.C. | 1871
The judgment of the Justice of the Peace was erroneous. He had no right to adjudge that the plaintiff's debt was "to be paid in old North Carolina bank money at par, of any bank of the State."
These words cannot be rejected as surplusage as they form a material part of the judgment. The original cause of action was merged in the judgment, and the terms of the contract so changed as to affect injuriously the rights of the plaintiff. A judgment is the conclusion of law from the facts proved or admitted in the suit, and in money demands must be absolute and in a specified amount. The plaintiff was entitled to such a judgment, and the law determines how it shall be satisfied. Mitchell v. Henderson,
The plaintiff has chosen the proper remedy as the writ of recordari is still in force in this State. Marsh v. Williams,
The writ of recordari is often used as a writ of false judgment, and lies where an erroneous judgment is given in a Court not of record. Upon the return of the writ when the whole proceedings are certified, the plaintiff must assign his errors. When the parties are in Court the subsequent proceedings are the same as upon writs of error. 2 Tidd. 1188.
The nature of the judgment in writs of error is well expressed inParker v. Harris, 1 Salkeld 262, and is fully sustained in 2 Saund. R., 101 W. 2 Tidd. 1179. "Where judgment is given for the plaintiff and the defendant brings error, there shall only be judgment to reverse the former judgment, for the suit is only to be eased and discharged of that judgment. But where the plaintiff brings error the (213) judgment shall not only by a reversal, but the Court shall also give such judgment as the Court below should have given; for his writ of error is to revive the first cause of action, and to recover what he ought to have recovered by the first suit, wherein the erroneous judgment was given."
These rules decide the case before us and the judgment must be reversed, and an absolute judgment entered in this Court for the amount ascertained to be due by the Justice of the Peace, with interest. *163
The motion to dismiss was properly disallowed. The motion to place the case on the trial docket was improvidently granted. Each party must pay his own costs in this Court.
Per curiam.
Judgment reversed.
Cited: Rush v. Steamship Co.,
(214)
