The plaintiff issued a warrant in debt on a note against the defendant as the administrator of John J. Briggs, deceased. It was returned by the constable "Executed," and the justice of the peace made thereon the following entry: "Judgment confessed to the officer by the administrator, Aaron F. Moses, for the sum of $15, with interest from 1 January, 1843, and costs. 24 April, *Page 74 1845. L. Cogdell, J. P." On the same paper the magistrate made further entry: "Execute the goods and chattels of the deceased, and sell to satisfy the above judgment and costs. 24 April, 1845. L. Cogdell, J. P."
The constable returned thereon nulla bona. On 10 June, 1847, the plaintiff brought the present writ by warrant in (89) debt on the above, as a judgment, suggesting a devastavit, and seeking to recover from the defendant de bonis propriis; and, after a judgment for the plaintiff, out of court and appeals, the case came on to be tried in the Superior Court on the plea ofnil debet, that there was no such judgment, and fully administered.
For the defendant it was insisted that the entry on the original warrant of 24 April, 1845, was not a judgment by the magistrate, but simply a memorandum of a conversation between him and the officer and nothing more; and, secondly, that if to be considered a judgment, it was not valid against the defendant, because he was not summoned to appear for trial at any particular time or place. The first point the court reserved by consent of the parties. On the other the defendant offered the constable who returned the warrant as a witness; and he deposed that he did not give the defendant notice of the time and place. of trial, but that the reason was that, when he served the warrant, the defendant told him he did not wish to attend the trial, and was willing a judgment should be rendered against him. Upon this evidence the court directed the jury to find the issues for the plaintiff, which was done. But the court, being afterwards of opinion for the defendant, on the point reserved, set aside the verdict, and ordered a nonsuit, under the agreement, and the plaintiff appealed. The Court does not concur with the opinions given by his Honor. The proceedings before single magistrates are generally informal, and the Legislature requires that they shall be favorably considered, if they can be seen to be (90) substantially sufficient. It seems to be straining this entry most unreasonably when it is read as nothing more than a memorandum of a conversation between the magistrate and the constable. To what end would a memorial be made of such a conversation? Would the justice have thought of issuing an execution on it? Or can we understand the justice to have supposed that the constable could take a confession of *Page 75 judgment, to be entered by the magistrate afterwards? Is it not rather to be understood that the justice meant to say that he did not give a judgment by default, but that the defendant confessed the debt to the constable, and that he, the magistrate, gave the judgment on the evidence of the constable? This last seems to the Court to be the fair and reasonable interpretation of what was done by the justice. The entry was intended as a judgment by some one, and whether the magistrate entered it as the judgment of himself or of the constable, cannot be seriously doubted. The judgment must, therefore, be reversed, and judgment entered for the plaintiff upon the verdict.
What has been said is sufficient to dispose of the cause. Yet we think it incumbent on us to say further that the defendant ought not to have been allowed to attack the judgment on the other ground, that he was not duly served with process or notified of the day and place of trial. Doubtless those are proper grounds for impeaching the judgment, but that must be done directly upon an application to the magistrate, or to a higher tribunal, to set it aside or reverse it for that cause, and is not open to the party collaterally when an execution is issued or debt brought on the judgment. Such is conclusively settled to be the law in respect of judgments of courts of record. Skinnerv. Moore, 19 N.C. 152; Burke v. Elliott, 26 N.C. 356. It is true that it was otherwise at common law in respect of the proceedings of inferior tribunals, not proceeding according to the course of the common law. But that has been (91) altered here by the Rev. St., ch., 31, sec. 108, which in re-enacting 4 Hen. IV, ch. 23, altered it by including judgments before a single magistrate having jurisdiction of the subject, and putting them on the same footing with those in a court of record. It is implied, then, until the judgment be set aside or reversed, that the magistrate found that the warrant was not only executed, but duly executed by the appointment of some certain day and place of trial, and that judgment proves itself to be right and the matter cannot be inquired of incidentally.
It is to be further remarked that the plaintiff is entitled to judgment notwithstanding the verdict is silent on the issue on the plea of pleneadministravit, for that plea was immaterial, as the former judgment is conclusive of assets. Erving v. Peters, 3 T. R., 685; Laws 1828, Rev. St., ch. 46, sec. 25.
PER CURIAM. Judgment for plaintiff.
Cited: McKee v. Angel, 90 N.C. 63; Spillman v. Williams, 91 N.C. 490;Brown v. McKee, 108 N.C. 393; Whitehurst v. Transportation Co.,109 N.C. 345. *Page 76
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