State to the Use of the Board of Education v. . Moody

Reade, J. The statute is so broad that there can be no doubt that the Judges of the Superior Courts have the power *75 to remit or lessen forfeited recognizances, either before of after final judgment, upon the petition of the party aggrieved. Bat. Rev., chap. 33, secs. 83, 84, 85. And this is a matter of .judicial discretion in the Judges below, which we .cannot review, except for some error in a matter of law or legal inference. Admitting that to be so, still it is insisted, that his Honor had no power to grant the relief sought in- this case, because it was res aajudicata. That at a prior term of the court the defendant had made the same application, when another-Judge, was presiding, and that it was refused. If this alleged fact had appeared to his Honor, it would-, have been indecent, if not beyond his power, to reverse what, his predecessor had done. But there is nothing in the case-sent us to show that this fact did appear to him. His Honor-found and stated, as it was proper that he should have done,, the facts upon which his judgment was based, and no such-fact is stated by him. Nor was there any exception taken to-liis statement of the 'facts; but simply an appeal from his. judgment. It is true the case shows, that there was evidence before his Honor tending to show the fact; but we have to look at th e facts found, and not at the evidence. If the fact existed, it existed of record,. and the record ought to have been produced before his Honor; and it ought not to have been made to bepend upon parol testimony, which his Honor had a right to disregard. Our attention was called to the case, as reported in. 69 N. C. Rep., 529, State v. Moody, where the State moved for execution against the defendant, Moody, upon the forfeited recognizance, and the defendant relied- upon the facts now set: forth as a plea in lar. The Judge then presiding, held that it was not a good plea in bar; and upon appeal, this court-sustained him. And in giving the reason for his. decision, the presiding Judge said, that it could only be allowed the defendant, upon an application for remitting the forfeiture,.. *76 which he declined. But it does not appear that such application was made by the defendant. It may have been made, or that remark of the Judge, that he declined to remit it, may have, prevented the application from being made. At any rate, it does not clearly appear that it was made. , And so this ‘court said, in delivering its opinion, that the statement was obscure, and that the defendant might move thereafter. And we suppose that his Honor was of the opinion upon this application, that it was not res adjudicate!. There is no error. This will be certified. Pek Cubiam. Judgment afiirmed.