Bowman v. . Foster

33 N.C. 47

• Court: Supreme Court of North Carolina
• Decided: June 5, 1850
• Status: Published

Opinion

Ruffin, C. J.

The purposes of justice require,.that judgments by default should be under the control of the Court at all times, and be set aside, when signed irregularly and against the course of the Court, when there was no regular service of process, or other due notice to the party, and without his appearance. Bender v. Askew,3 Dev. 150. The oath of this person is positive, that he had no information of any step taken in the matter for nearly four years after judgment given in his favor; and there is nothing in the record in opposition to that statement. It follows, necessarily, that the judgment could not stand against him. When set aside, the defendant might, indeed, have insisted on the certiorari being dismissed, as having been improvident^ granted. For, it was the plaintiff’s own look out, that his agent should serve him faithfully; and, moreover, his delay in making enquiry into the matter, until the expiration of two and a half years after the judgment against him, constituted such laches, as ought to preclude him from this remedy. The defendant, however, did not insist on that, and was content to be admitted to plead, averring the merits to be with him; and to that there.can be no just objection.

Per Curiam. Judgment affirmed.