It appeared from the records that the plaintiff had obtained a judgment before a justice of the peace against John Gaster, one of the defendants, and on 20 March, 1843, he took out a process thereon, which was intended to be a capias ad satisfaciendum; but instead of being returnable within three months after its date and before a justice of the peace, it was made returnable to the next county court of Moore County, to be held at the courthouse in Carthage on the fourth Monday of April next following. On 30 March, John Gaster was arrested thereon by the sheriff, and he and Henry Gaster, the other defendant, as his surety, entered into bond for his appearance. After reciting the arrest "by virtue of a capias ad satisfaciendum issued by a single justice of the peace at the instance of the said James C. Dobbin for the sum of, etc., recovered, etc., and that the said John Gaster was desirous to take the benefit of the act for the relief of insolvent debtors," the condition is for the appearance of "the said John at the next court of pleas and quarter sessions to be held on, etc., at, etc., then and there to stand to and abide by such proceedings as may be had by said court in (72) relation to his taking the benefit of the said act."
The bond, judgment, and execution were duly returned to the county court at April Term, 1843, which was more than twenty days after the date of the bond; and then and there "the said John Gaster being solemnly called and failing to appear, on motion of the said James C. Dobbin," the court gave judgment against John Gaster and Henry Gaster for the penalty of the said bond, to be discharged by the payment of the debt and costs. *Page 60
At July Term, 1843, upon a rule granted and a notice to Dobbin, the court set aside an execution that had been issued thereon and ordered the judgment itself to be vacated; and upon an appeal therefrom to the Superior Court, this last order was affirmed, and then the plaintiff Dobbin appealed to the Supreme Court. We regret that the case has not been argued for the appellees, since, as at present advised, our opinion is against them, and there may be reasons for the decision under review which are not set forth or perceived here. The counsel for the plaintiff indeed informed us that the ground on which it was made was that the ca. sa. was insufficient because illegally returnable as to time and place, and he attempted to support that process in those points. The Court, however, is not prepared to go with him in the argument upon that part of the case. But it is not thought material to examine the point because, admitting the insufficiency supposed, we should be inclined to the opinion that the judgment on the bond was not erroneous; and we hold that, at all events, it should not be set aside at a subsequent term, as was done in this case.
The party might have been relieved from arrest upon a habeas corpus; and we will not say that he might not also have been relieved even after giving bond if he had appeared and placed himself again in actual (73) custody, and then moved the court to quash the proceedings or discharge him. If the debtor had appeared, the court, as we suppose, would not have been obliged ex officio to look back to the ca. sa. and judgment before admitting him to the benefit of the act or subjecting him to its penalties. The creditor could not in such a case take the objection to the debtor's taking the oath and being discharged that the ca.sa. on which the arrest was made was not valid. Much less could the objection prevail, if taken for the first time after the debtor had taken the oath and been discharged, on a motion to set aside or vacate the judgment of discharge. There is in all legal proceedings a proper time to present evidence and urge objections arising on it; and if a party willfully or negligently omits at that time to take the benefit of such matter as may be in his favor, he must be deemed to have waived it. So, on the other hand, if the debtor, upon appearing, raised no objection to the legality of the execution and arrest, but upon refusing or being unable to take the oath of insolvency was adjudged to be imprisoned, he ought not afterwards to go back to pick holes in the process on which he was brought before the court. It is true that in these cases *Page 61 there are no pleadings by which a party concludes himself, but though the proceedings are summary, yet the party (if after giving the bond he can take the objection) ought, at the least, to present his case to the notice of the court by showing that the facts are not as they are recited in his bond, and moving on that ground for his discharge. Wherefore should not the law be so? If the debtor were discharged for such a cause, the debt is not thereby satisfied, but the creditor may immediately take another execution against the body. Then it must be supposed that the debtor, by not bringing forward the defect in the previous proceedings, waives the delay and submits to be then imprisoned under the judgment which the court is required to pass, namely, until he shall make a full and fair disclosure of his effects. It is true also that this party did not appear, and therefore he cannot be said to have waived any advantage. But that, we think, makes no difference, (74) for if he waived nothing by the default he admitted every fact which a declaration in debt on the bond ought to allege. The act says that "in case of failure to appear," judgment shall be rendered instanter on the bond, which places it on the footing of a judgment by default in debt, which is final the first term. If, therefore, the allegation of a ca. sa. and an arrest would, notwithstanding the recital in the bond, be requisite in a declaration on this bond (a point we do not decide), still the default admits that allegation as made, and therefore there is no necessity for other proof. Here the bond is in due form as prescribed in the statute and stands in the place of the declaration, and we see no reason why the court should go out of the bond and require the creditor to prove his case upon independent evidence when the case is fully admitted under the hand and seal of the debtor and surety and no objection raised by them. But if the judgment be erroneous upon the ground that the ca. sa. on which the arrest was made is to be returned, and so forms part of the record, still it is a valid judgment until reversed, and that can be done only in a Superior Court. It can be vacated by the court which rendered it only on one of two grounds — the one that it is absolutely void for the want of jurisdiction of the subject (Whitley v. Black, 9 N.C. 179); the other that it was not rendered by the court; but was unduly taken by the party contrary to the course of the court; in other words, was irregular. There is no question as to the jurisdiction, and there is nothing set forth which shows that this judgment was irregular or that it was vacated on that ground. Apparently the judgment was that of the court in fact, after proclamation; and if so, it must be deemed regular, however erroneous it may be. But if signed in the office by default, it would still seem to be perfectly regular. It was taken in term time at the proper term, according to the bond, and at the proper period of the term, as far as appears, and for those reasons *Page 62 (75) the case differs from that of Winslow v. Duckworth, 20 N.C. 1. From necessity, every court must have the power to set aside an irregular judgment; that is to say, one which the court did not actually give and which was entered by surprise on the opposite party and contrary to the course of proceeding as established by law or the practice of the court. But here was no surprise, for the judgment was taken upon the bond given by the parties at the term it required the debtor to appear, and for his failure to appear, and therefore was taken in the regular course of practice and without having precluded the debtor or his surety from the opportunity of discharging themselves or making rightful defense at the proper time. it is obvious, therefore, that the objection now urged by those parties is not to the period or circumstances of taking the judgment, but it is to the substance of the case on which the judgment was rendered, which they say did not entitle the creditor to judgment, and which, therefore, we think might sustain a writ of error or appeal from the judgment, but, even if true, cannot authorize an order at a subsequent term to vacate the judgment.
The opinion of the court, therefore, is that the orders of the Superior and county courts, from which Dobbin appealed, are erroneous and must be reversed, and the cause must be remanded to the Superior Court with directions there to reverse the said order of the county court, with costs in the Superior Court, and to issue a writ of procedendo, certifying the said reversal to the county court and requiring that court to discharge the rule for vacating the judgment recovered by the plaintiff at April Term, 1843, of the county court and to grant the plaintiff execution of his said judgment.
PER CURIAM. Reversed.
Cited: Watts v. Boyle, post, 334; Freeman v. Lisk, 30 N.C. 213; Earlev. Dobson, 46 N.C. 517; Bryan v. Brooks, 51 N.C. 581.
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