Carmer v. . Evers

Dillard, J. On the return of the justice of the peace in answer to the writ of recordari, Plis Honor ordered the cause to be entered on the docket, and from that order the plaintiff appeals and assigns the following errors: 1. Because the writ was not issued to the justice who tried the cause, and there was no record before the court. 2. Because there was no averment in petition of payment of justice’s fees. 3. Because the petitioner did not give the bond required by law. 4. Because the petition disclosed no merits and had not complied with the law. We think there was no error in His Honor’s ruling as to these several grounds of error. The writ of recordari although not in terms addressed to the justice of the peace was served on him by the sheriff, and the justice having yielded obedience to the writ and recorded and sent up his proceedings, it is legally as sufficient as if formal^ addressed to him by name or in his official capacity. There was nothing in the objection of the non-payment of the justice’s fee; and the justice, and he alone, had the right to urge and act on it. The failure to give bond as required by law was remediable by the allowance of the court in the exercise of its discretion; and the court having allowed it nunc pro tunc, the plaintiff is not injured and has no right to complain. The warrant of attachment issued in the cause, served, by a copy delivered to the city, imposed the duty on the city to give a certificate of its indebtedness to Evers, or either or any of the defendants to the suit; and failing to do so, the legal proceeding was to have up the officers representing *59 tlie corporation before the justice of the peace and to examine them on that subject, and in legal effect such examination operated a lien on anything owing by the city to the defendants in the suit, as of the day when the copy of the warrant of attachment was delivered ; and thereby prevented any alteration of the state of accounts between the defendants and the city. A warrant of attachment under our law served on a debtor to the defendant in the suit, either with or without a certificate given of the amount, is merelya security for such sum as the plaintiff may recover. It does not subject such person to have judgment taken against him in the pending cause, but only to a separate action for its recovery in the name of the sheriff or in that of the defendant, subject to the direction of the court, Bat. Rev., ch. 17, § 204, with liberty to the plaintiff to prosecute actions himself, or under his directions, on indemnity given to the sheriff, as provided in section 210 of same chapter. It is manifest from these provision's of the statute that it was never designed that a stranger to the action should be proceeded against otherwise than by a suit in the ordinary way, commenced, by summons. Therefore the judgment rendered against the city on the examination of its officers was unauthorized and erroneous. On the examination had and concluded on the 13th of November, the city left court liable only to be impleaded in a separate action ; and not being otherwise connected with the pending cause,'its failure to appeal from the judgment rendered on the 10th of December, of which it bad no notice actual or constructive, cannot be imputed to it as laches. The statement is that the city had no knowledge of the judgment entered against it until about the 27th of Decem*ber, when it sought to arrange for relief against it with the plaintiffs, and thought it had done so. But being notified, of the rejection of its overtures on the 3rd of January, the *60 city then moved to vacate the judgment in the justice’s court, and that being refused, immediately had recourse to the petition for writ of recordari to bring up the case to the superior court. The city had merits, and having lost its right of appeal without any default on its part, the writ of recordari was properly granted. The record being sent up, it was the right course to state the case on the docket for a hearing, as on a writ of false judgment. Swann v. Smith, 65 N. C., 211. There is no error. Judgment of the court below is affirmed. This will be certified that the cause may be proceeded in as the parties may be advised. No error. Affirmed.