Arnold sued out an attachment returnable before a justice of the peace, against Dougan, a resident of Indiana, (100) and caused a levy to be made upon a tract of land, on the return of which the justice ordered an advertisement for the appearance of Dougan, to be published for thirty days, and no appearance being entered, a judgment by default was rendered, and the proceedings filed in the county Court, where an order was given for the sale of the land, and a writ of venditioni exponas issued accordingly.
While this writ was in the sheriff's hands and before any sale, on Clark, as the agent of Dougan, applied to Judge Martin for writs ofcertiorari and supersedeas, and grounded the application upon an affidavit stating in substance, that his principal Dougan, had no knowledge of the proceedings against him until after the order of sale, and owed nothing to Arnold. The Judge may a fiat for the issuing of the writs, and on their return at last Spring Term, Arnold sent in counter-affidavits which did not however repel the affidavit on which the writ was granted, nor show any debt due him, but his counsel moved to dismiss the writs quia improvideemanaverint, which motion the presiding Judge refused to allow, but on the contrary, directed a new trial of the attachment cause to be had, and that it should be placed on the trial docket of the Court for that purpose.
From which order overruling the motion to dismiss and directing the new trial, Arnold prayed the Judge to allow an appeal, which his Honor allowed accordingly. The argument in favor of the motion to dismiss the certiorari as having been improvidently issued, is founded upon the use of that writ in the English law. It is *Page 83 there used to bring an indictment from an inferior court into the King's Bench for trial; or to have a judgment of an inferior magistrate, not proceeding according to the course of the common law, reviewed. In neither instance does a second trial of the facts take place. In the latter, the judgment, if irregular or unsupported by the acts found by the magistrate and stated in the conviction to be found, is quashed (101) and the parties have to begin again.
In this State the writ may also be, and has been used as a writ of false judgment, merely to have the matter of law reviewed. But it has also in our laws, another important property, that of affording the means of re-trying the facts, which is unknown in England.
Here an appeal is matter of right, and on it there is a trial de novo. The certiorari is in proper cases, substituted for it, and if the party has been improperly deprived of his appeal, upon affidavit of the facts, it is granted if not of right as of course. So also if he has lost his appeal by accident, and makes prima facie, a case on the merits. If the merits in such a case be not answered by the affidavits on the other side, the jurisdiction is exercised of setting aside the first judgment, and ordering a new trial in the Superior Court on the former issues, if the first trial was on issues, or if the first judgment was by default and without laches, the party is permitted to plead in such manner as the Court may allow, so as to obtain a trial on the merits. Such has been the long established course in our Courts; and it seems to be necessary consequence of the provision, that one trial shall not conclude the parties, but that each by appeal may have a new trial. The right of appeal is favored and is not to be defeated by accident.
This application of the writ is necessarily limited to the period during which the judgment remains unsatisfied. After execution and the levy of money by a sale, the interests of third persons forbid further interference, merely for the sake of another trial. The remedy then must be by writ of error, or of false judgment for error in law alone. But before satisfaction none but the parties can be affected, and there is no inconvenience to prevent a new trial by certiorari, upon a proper case, that is, one in which the applicant has merits, and accounts first for not pleading or not appealing, and secondly for the delay in applying for the writ, if delay there has been. (102)
Here the merits are palpable. The demand of the original plaintiff has upon his own affidavits, no foundation in conscience or law. The judgment is against a *Page 84 resident in Indiana, upon attachment before a justice of the peace out of court, advertised for thirty days in Randolph county, which conveyed no actual notice to the party, and of which he had in fact, no knowledge until after the order for the sale of the land levied on, had been made in the County Court, and the land advertised for sale under execution. His application immediately followed the notice to him.
It is also objected that this certiorari will not lie as being directed to the County Court, whereas it ought to have gone to the single magistrate by whom the judgment complained of was given. Without accurately inquiring into the nature of the judgment given by the County Court upon a levy on land by a constable, it is sufficient for the purposes of this case to say, that the writ must go to the County Court, because nobody else can given an answer to it. By the act of 1794 (Rev. c. 114, sec. 19), the constable is required to return the execution to the justice of the peace who issued it, who is to return it, the warrant and judgment, and all papers on which the judgment was rendered, to the next County Court, where an order of sale is to be made, and the whole recorded. The magistrate cannot afterwards withdraw the papers, or make up a record for the Superior Court. The whole is already a record of the County Court, and there the order is made which alone authorizes effectual execution, and consequently to that court ought to be addressed the writ, which is to operate as a supersedeas to the execution, and to the judgment either of that court, or of the justice of the peace there recorded.
The opinion of the Court therefore is, that there is no error in the decision of the Superior Court.
PER CURIAM. No error.
Cited: Kelsey v. Jervis, 30 N.C. 452; Lassiter v. Harper, 32 N.C. 395;Lunceford v. McPherson, 48 N.C. 177; Barton, ex parte, 70 N.C. 136.
(103)