9 N.C. 179 | N.C. | 1822
Lead Opinion
A proceeding is authorized by the Act of 1820, and an authority confided to the county courts, altogether different from the usual common law process in civil cases. When the first judgment was entered upon the bond the Act of 1820 had been repealed and made void, and from thence forward all proceedings had under it were coram non judice; they were not merely reversible for error, but absolutely (181)null; for it is clear that no proceedings can be taken under a repealed statute, though commenced before the repeal, without a special provision for that purpose. When an inferior jurisdiction is confined to some particular things, and the suit there is for something else of which they have no jurisdiction, all is void, and can by no admission be made good. 1 Salk., 202. One of the cases cited is very strong, for there the party had given in a schedule of his effects and was prepared to avail himself of an insolvent law then in force, but the court on an unjustifiable pretense postponed the application to a subsequent session, before which the law was repealed, and it was properly held that no step could be taken by the quarter sessions after the repeal. Upon the distinction between a void and a voidable judgment, I think the order to vacate was properly made in this case, and that the judgment should be affirmed.
Addendum
By the Act of 1821, the act for the relief of honest debtors was repealed, and all power of proceeding under that law ceased. The judgment in the present case was entered up under an impression in the court that the proceedings pending at the time the law was repealed were not affected by that repeal, and judgment was rendered according to the law as they understood it. That act authorized judgments to be rendered up in a summary way upon motion, against persons not brought into court by process. The judgment in the present case was therefore not only a judgment contrary to or in opposition to the law as to the liability of the defendants, but in opposition to the rules of practice and procedure prescribed to the court. For the law was repealed, not only as to the liability of the defendants, but also as to the summary mode of proceeding, for which latter reason I think the judgment not erroneous only, but absolutely void and liable to be vacated by any succeeding court. Writs of error (182) are necessary only where the court has power to act but mistakes the law; therefore for error of law only a superior tribunal can reverse the judgment. But where a court has not by law an authority to act its acts are void and may be set aside on motion. The propriety of considering a judgment void in cases of this kind, viz., where the court *102 affect to act in a summary manner without bringing the defendant before them, when the law does not authorize that summary proceeding is seen by viewing this as a judgment rendered in one of our Superior Courts, whose judgments cannot be examined into for error in law in any manner, but by an appeal to this Court, and before the establishment of this and the late Supreme Court in no manner at all. The consequence would be that a person might be ruined, as not having an opportunity of being heard, and this Court, not possessing the power of issuing a writ of error, and an appeal being attainable only by an application to the Court during the term at which the judgment was rendered.
HALL, J. I entertain some doubts in this case, because the judgment sought to be vacated might be reversed by writ of error; however, I am not prepared to say that it ought not to be vacated as moved for, and as done in the Superior Court.
PER CURIAM. Affirmed.
Cited: Swaim v. Fentress,
(183)
