State v. . Speaks

Sjiith, O. J. (after stating the case). It is too plain a proposition to require support from argument or precedent, that whatever defences were set up, or could have been set up, upon the hearing of the former appeal, are conclusively determined in that adjudication, and are not reviewable in the present appeal. Controversies would never be settled if this practice were allowed, and successive appeals, but successive experiments, none finally disposing of the cause; Mabry v. Henry, 83 N. C., 298. As the defence now sought to be set up could as well have been made available when the first a¡> peal was taken, it has passed into the domain of res adjudí-cala, and cannot now be pressed into service. If a series of appeals were allowable under such circumstances, they might be the means of an indefinite postponement of the execution of the judgment, and perhaps defeat it altogether. We do not say that a judgment not authorized by law and unlike that upheld may not be reviewed and reversed by appeal. Undoubtedly such new error introduced into the proceeding, and not within the compass of the ruling in the appellate Court,could bethus corrected. But where thesecondisin strict conformity with the judgment before rendered, and whose Amlidity has been sustained, there is no ground for a second appeal, and it cannot be entertained. It is, in fact,, an attempt to evade or defeat the mandate of the higher Court, whether so intended or not. *692 If, however, the prisoner was unlawfully convicted, and entitled to relief on the ground of an absolute want of jurisdiction in the Court to try him, he misconceives the remedy in seeking it through a motion in arrest. This motion is based upon a defect shown in the record of proceedings, and not upon matters extrinsic and not thus appearing. If the case were, as contended, one of coram nonjudice, and the proceedings a nullity, the prisoner might demand his discharge and obtain it, unless detained for another trial upon the same indictment, or one to be substituted in its place. But we are not disposed to pass over unnoticed the objection to the exercised jurisdiction, based upon the clause in the Constitution which declares, that “ no Judge (of the Superior Courts) shall hold the Courts in the same district oftener than once in four years,” Const. Art. IV. §11. This provision has received a construction in the case of the State v. Monroe, 80 N. C., 373 ; where it is held to apply to the series of Courts forming a district over which a Judge, in his riding, is to preside, and has no reference to the Courts separately considered. To the same effect, State v. Bowman, Ibid 433. These two Courts, moreover, are of the same county, and constitute a part of one and the same riding, the two being required for the public business, and the latter a supplement to the former. The Constitution does not reach the case. But even if all these considerations were out of the way, and the trial Court was held in disregard of the constitutional mandate, we are by no means prepared to concede that a Court held by a Judge of general jurisdiction, though not the Judge designated to hold it, is absolutelj’ without authority, and all its acts null and void. If this were so, could a failure to take the preliminary and prescribed oath of office have the same annulling effect upon every official act ? Such a doctrine would lead to most mischievous consequences, and tend to unsettle rights of property and produce universal distrust among all who have business with the officer. Such *693 is not the law, and hence, as affecting third persons, one in possession of office and exorcising its functions, with a silent public acquiescence, though wrongfully in possession, the acts of an officer dejado arc as binding as if he were an officer de jure ; Norfleet v. Staton, 73 N. C., 546. How much more so must be the acts of a Judge in office, both de fado and de jure, and exercising only functionsthat belong to him as such. But, for reasons already stated, the appeal was improvident^ taken, and must be dismissed, and the Court below left to proceed in the execution of the mandate of this Court. No error. Dismissed.