Hill, for the defendant, moved to set it aside for irregularity, and he produced an affidavit of the defendant stating that he had not any notice of these proceedings.
Jocelyn, for the plaintiff. The judgment was obtained a term or two ago, and now cannot now be set aside unless by a writ of error. *Page 96 When this Court passes a judgment, and the term expires, it cannot, in general, be set aside but by a writ of error; and then only in a case where the error is in a matter of fact, to be tried by a jury. If the error be in a matter of law, this Court cannot reverse its own judgment for any such error; for then proceedings would be endless; but if the judgment be absolutely void, being given against a person who was not served with process; or if it be taken irregularly against the known rules of the Court, it may be set aside at any time on motion.
Here the property was not taken into the actual custody of the officer; had it been so, the law supposes notice would have come to the defendant; and without such actual taking of the property levied on, into the officer's custody, the attachment is not well executed, and does not bring the defendant into Court; consequently this judgment was (98) irregular, having been taken against one not in Court, and must therefore be set aside.
Judgment set aside.
NOTE. — See Devany v. _______________, 3 N.C. 239, and the note thereto.
Cited: Bryan v. Brown, 6 N.C. 344. *Page 97