Cowles, Adm'r v. . Hayes and Another

69 N.C. 406

• Court: Supreme Court of North Carolina
• Decided: June 5, 1873
• Status: Published

Opinion

Rodman, J.

It is clear from what was said in this case in 67 N. C. Rep. 128, that the" Judge erred in undertaking to decide the appeal from-the Justice on the papers merely, and out of term time. It was held also that the plaintiff was mistaken in his remedy when he applied for' a reco'rdari to the Justice, because having appealed, the case was no longer before the Justice, but in the Superior Court. His only remedy possible was by applying to the Judge to vacate the judgment, which he made at Chambers. That is the course which he is now taking. The motion is not made under sec. 133, C. C. P., the plaintiff does not ground his claim to relief on his own mistake, inadvertence, surprise, &c., but he puts it on the ground that the judgment of which he complains was irregular, and against the course and practice of the Court. An irregular judgment may be set aside at any time, and a party injured is not confined to a year after he has notice of it. Keaton v. Banks, 10 Ired. 381. By which is meant within any reasonable time, having regard to the rights of third persons as well as to those of the parties.' The judgment was irregular, because the Judge undertook to decide the case himself, when, as the papers showed^the plaintiff was entitled to a trial upon the facts by a jury. We think the application to set it aside was made in a reasonable time.

The judgment below is affirmed and the case remanded to be proceeded in, &c.

Let this opinion be certified.

Per Curiam. Judgment affirmed.