Hoke v. . Edwards and Others

Supreme Court of North Carolina

Hoke v. . Edwards and Others

46 N.C. 532

DecidedAugust 5, 1854

StatusPublished

This text of 46 N.C. 532 (Hoke v. . Edwards and Others) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hoke v. . Edwards and Others, 46 N.C. 532 (N.C. 1854).

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Opinion

Pearson, J.

According to the English practice, no judgment could be entered, unless the defendant appeared and made de-fence. If he appeared and failed to put in his pica, there was judgment upon nil dicit, either final ; or interlocutory, with a writ of enquiry: depending upon whether the action was in debt for a specific tiling, or whether it ¿cundí d in damages. If the deioi.dant did not appear and make defence, after being served with mesne process, the plaintiff could only run the process to Outlaw)'!/, or, if the mesne process was a capias respondendum, charge the sheriff and fix the bail below.

Tuero were many inconveniences attending this practice, which the act of 1777 was intended to remedy. Rev. Slat. oh. 81, s. G2: “The defendant shall appear and plead, or dcmuv, at the same term to which the writ is icturnablo; otherwise, the plaintiff may have judgment by default, which, in actions of debt, shall be final, be., and, in all other actions, not specially *534 provided for, where the recovery shall bo in damages, a writ of enquiry shall be executed at the next succeeding term.” The 95th and 9Gth sections of the same chapter, makes provision in regard to interest. So, if the action had commenced by writ, upon its being returned “ executed,” it would have been regular at the next term to enter final judgment, according to the for* mor judgment, if the defendant had failed to appear and enter his pleas. Of course it was regular to do so in the present case, which was commenced before a single Justice, where the defendants appeared, made defence, and appealed; which appeal stood for trial at the next term of the County Court. Rev. Stat. ch. 62, sec. 24. By the 12th section of the same chapter, it is provided, “ Upon a. warrant on a former judgment, such judgment shall be evidence of the debt, subject to such deductions as the defendant may make appear to have been paid.” The defendant appeared and made defence before the justice, and took an appeal. So, even, according to the English practice, he was in Court, upon his default m not entering his pleas, it was according to the course of the Court, to enter a final judgment, without the aid of the act of 1777.

Judgment affirmed.

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Pearson, J.

According to the English practice, no judgment could be entered, unless the defendant appeared and made de-fence. If he appeared and failed to put in his pica, there was judgment upon nil dicit, either final ; or interlocutory, with a writ of enquiry: depending upon whether the action was in debt for a specific tiling, or whether it ¿cundí d in damages. If the deioi.dant did not appear and make defence, after being served with mesne process, the plaintiff could only run the process to Outlaw)'!/, or, if the mesne process was a capias respondendum, charge the sheriff and fix the bail below.

Tuero were many inconveniences attending this practice, which the act of 1777 was intended to remedy. Rev. Slat. oh. 81, s. G2: “The defendant shall appear and plead, or dcmuv, at the same term to which the writ is icturnablo; otherwise, the plaintiff may have judgment by default, which, in actions of debt, shall be final, be., and, in all other actions, not specially *534 provided for, where the recovery shall bo in damages, a writ of enquiry shall be executed at the next succeeding term.” The 95th and 9Gth sections of the same chapter, makes provision in regard to interest. So, if the action had commenced by writ, upon its being returned “ executed,” it would have been regular at the next term to enter final judgment, according to the for* mor judgment, if the defendant had failed to appear and enter his pleas. Of course it was regular to do so in the present case, which was commenced before a single Justice, where the defendants appeared, made defence, and appealed; which appeal stood for trial at the next term of the County Court. Rev. Stat. ch. 62, sec. 24. By the 12th section of the same chapter, it is provided, “ Upon a. warrant on a former judgment, such judgment shall be evidence of the debt, subject to such deductions as the defendant may make appear to have been paid.” The defendant appeared and made defence before the justice, and took an appeal. So, even, according to the English practice, he was in Court, upon his default m not entering his pleas, it was according to the course of the Court, to enter a final judgment, without the aid of the act of 1777.

Judgment affirmed.

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46 N.C. 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoke-v-edwards-and-others-nc-1854.