Opinion
(October Term, 1796.)
A motion to dismiss a cause brought up by a certiorari was made upon the ground that the notice which had been ordered at the last term to be given to the defendant had not been given: but it appearing that the defendant had entered an appearance by the initials of his attorney's name, being placed on the docket, the motion was refused.
CERTIORARI had been obtained for the removal of the records of a cause from a county court into this Court, returnable the term before last, and no notice of this certiorari having been served on the adverse party, the Court at the last term, ordered such notice to issue, and at this term no notice having been served, the defendant in the certiorari, by Mr. Duffy, his attorney, entered an appearance in the usual form, namely, by writing the initials of the attorney's name to the suit on the docket; and now Mr. Duffy moved for a dismission of the certiorari for want of notice to the defendant, according to the rule of the last term; and he urged that as no process was issued to give notice from the last term, that was of itself a discontinuance of the whole cause. (406)
When a certiorari is obtained to remove a cause from a court below, the adverse party should have notice, to the end he may appear and oppose the motion for a new trial if he thinks proper. As the Court at the last term ordered process to issue from that term, it must now be taken that the cause was not then discontinued. Had it been, no such process would have been ordered, but a discontinuance would have been entered, or a procedendo. Then notice should have issued from the last term; and it appears now that no process for that purpose has actually been served since, but the defendant's attorney has entered his appearance and moved on behalf of the defendant for a dismission, and this is proof that the defendant had notice. It is always so taken. Vide 1 Stran., 261; 2 Stran., 1072; Salk., 59. The object of process is to give notice to the defendant, and to bring him into court; but if he chooses to come in voluntarily, that supersedes the necessity of process. The entering the initials of the attorney's name on the docket is the usual mode of appearing here practiced, and is looked upon as equivalent to his having a power of attorney for that purpose, signed by his client, as practiced in the English courts. Such a power, and an appearance in consequence thereof, is a waiver of all objections for irregularity or want of process, if the adverse party chooses so to consider it.
The motion to dismiss was refused.
Cited: Worthington v. Arnold, 13 N.C. 364; Jones v. Penland, 19 N.C. 359; Miller v. Heart, 26 N.C. 26.