Roulhac v. . Miller

MemumoN, J., after stating the above. Upon this state of facts we think the petitioners are entitled to the writ of certio-rari. It is very manifest they desired and intended to aj>peal from the judgment from the beginning. It was agreed, at the dime it was stipulated that the judgment might be entered as of the term of the court, though it was, in fact, to be given after the term, that the party against whom judgment should be given might appeal. The counsel for the petitioners in that action swear that they intended to appeal, and it appears they were *195 vigilant and earnest in their efforts to learn when the judgment was entered, with the view to appeal. Indeed, we can scarcely see how they could do much more than they did. It could not be expected that they would communicate with the judge on the subject. The clerk was the proper person to have charge of the papers and the judgment, and to-him were all inquiries about them properly addressed. He ought to have known when they came into his office, and been able to give all proper information about them. It seems, however, that he was not advertent to their presence in his office for some considerable time, and repeatedly told the counsel applying for information about them, that the judge “had not been heard from,” and he did this, as the counsel swear, a few days before the time expired within which the appeal might be taken. It is true the clerk says ho feels confident that the counsel did not call upon him for information after the 14th of May, but he does not say positively that they did not. Indeed, he says he could not say at what time he called, and it appears that he relied largely for his recollection and information upon the entries on the docket. His affidavit is not positive, and he frankly says he relies, in several respects, upon the docket-entries. The counsel do not say they examined the docket-entries; they say they called for the papers and searched for, but could not find them. This was sufficient. It is customary to call for and examine the papers. Under the circumstances of this case, it was sufficient if the counsel called upon the clerk, and he told them that the judge had not been heard from. It was not his duty to know of the presence of the papers and the judgment, and to give information about them. There are cases in which counsel ought to examine the records for information, but in a case like this, it is sufficient to call- upon the clerk. The object was merely to get notice of a fact known to the clerk. Where a party intending to appeal in apt time has not been in default himself, and has been reasonably diligent in his efforts to appeal, in the course of procedure, but failed to do so because *196 of the'inadvertence, mistake or lack of information of the clerk, as in this case, the writ of certiorari as a substitute for an appeal will be granted. Murray v. Shanklin, 4 Dev. & Bat., 276; Howerton v. Henderson, 86 N. C., 718; Parker v. Railroad, 84 N. C., 118; Syme v. Broughton, Ib., 114. It was insisted in the argument, that the denial of the motion for an injunction ought to be conclusive of the whole matter assigned as ground for this application. We do not think so. That motion was made in a separate and distinct action from that in which the petitioners desired to appeal, and the judge had no authority to correct errors or irregularities in the latter; nor had he authority to exercise his powers of discretion to set aside the judgment for “mistake, inadvertence or excusable neglect.” Indeed, the purpose of the application seems to have been an ill-advised effort to enable the present petitioners to appeal from the judgment complained of. The judge simply denied the motion for an injunction, without assigning -any of the grounds of his decision. He may have thought the defendants in the judgment complained of ought to have moved before him in the action wherein it was granted, to set it aside for some sufficient and properly assigned cause, or, that their remedy was the application they are now making. But in any view of the matter, his action was not conclusive. Parker v. Bledsoe, 87 N. C., 221; Grant v. Moore, 88 N. C., 77. In such an application as the present one, it ought to appear that there was apparent or reasonable ground for the appeal that was lost, and that the purpose was not simply to delay, harass or annoy the party obtaining the judgment from which it was intended to appeal. But it need not appear that the party deprived of the, appeal had cause therefor that would certainly avail him in this court if his case should come before it, as upon appeal, and errors being properly assigned. Such a course of practice, if allowed, would practically result in deciding the question at issue in an action, upon errors assigned in an application for the writ of certiorari — a collateral proceeding. It is *197 sufficient if it appear that there was reasonable ground for appeal; that the purpose is not vexatious. The petitioners insist that the judgment of which they complain ought to have been for the penalty of the undertaking ($800), and an inquiry directed as to the damages the plaintiff had sustained; that the damages are not necessarily the plaintiff’s whole debt; and they further insist that, at all events, the judgment is irregular, in that, it ought not to have been final. We are not prepared to say that these suggestions of error are trivial and not fit to be considered, if properly assigned and brought before us. They raise questions that admit of much plausible debate, as we learned in the able arguments of counsel upon this application. We do not think it proper to decide them now; indeed they are not presented for our decision further than to enable us to see that there was some reasonable ground for the appeal. The defendants had the right to appeal, and lost it by no inexcusable default or negligence of their own, and they are entitled to bring their case before this court by the writ of certiorari. Howerton v. Henderson, supra; Wynne v. Prairie, 86 N. C., 73; Rogers v. Moore, 86 N. C., 85; Williams v. Rockwell, 64 N. C., 325. The prayer of the petitioners is granted, but they must give . the undertaking required by the superior court upon appeal, and a supersedeas bond according to law, if they desire to stay the execution upon the judgment for the debt. Let the writ of cer-tiorari issue accordingly. Pee CujriaM. Motion allowed.