Opinion
(December Term, 1846.)
1. When a recordari, according to the common practice in our State, is brought with a view to have a new trial upon the facts, as it is a favor, in the nature of an extension of the power of appeal, it must be applied for speedily, and any delay, after the earliest period in the party's power to apply, must be accounted for.
2. But when the recordari is used as the foundation for reviewing summary convictions, or other proceedings, before inferior tribunals in a case of false judgment, it is in the nature of a writ of error, and in fact always lies as a matter of right.
3. Where the recordari is to bring up the proceedings in a case of forcible entry and detainer, although the plaintiff may have entered no traverse before the justice, yet he shall be permitted to assign as many errors as he thinks proper.
APPEAL from RUTHERFORD Spring Term, 1846; Pearson, J.
In November, 1845, the plaintiffs obtained from the Superior Court of Rutherford a writ of recordari to bring up a certain proceeding had at the instance of Durham before a justice of the peace for an alleged forcible entry into a certain tract of land, as it was stated in the affidavit, on which the writ was moved for. The affidavit further stated that the land belonged to one Baxter in fee, who leased the same (131) to the plaintiffs, who entered peaceably and were quietly possessed of the premises when they were evicted by order of the justice of the peace, who rendered a judgment against them for the costs of the said proceedings; and it also stated several particulars in which the plaintiffs were advised the proceedings were erroneous: first, that they were carried on in the name of the State; secondly, because the jury did not find any forcible entry or detainer; thirdly, because the jury did not find that Durham had any estate in the land.
The justice returned thereon proceedings in the following words:
NORTH CAROLINA — RUTHERFORD COUNTY, 31 December, 1844.
Achilles Durham v. Charles Webb and John Webb. The party of the second part has made forcible entry and detainer on a certain tract or parcel of land, and a certain house known by the name of the McKinney House, and agreeable to act of Assembly we command that the sheriff of said county, or any lawful officer, summon a jury of good and effective men to attend on the premises and make their report, as in accordance with the same. M. R. ALEXANDER, J. P. JOHN BABER, J. P.
Returned "Executed" by J. A. Carpenter, constable. There were thereon these further entries:
"In accordance to a summons to us undersigned jurors to act as directed by the laws of the State in case of possession, wherein Achilles Durham is plaintiff and Charles Webb and John Webb are defendants, we report as follows: that our judgment is that the said Durham holds possession of the premises in dispute, consisting of the mansion house and its appurtenances; and this is our verdict." This was signed by twelve persons, and attested by "M. R. Alexander, J. P."
Then comes the following:
"In conformity to the within decree, we, the jury, say that Achilles Durham is entitled to the premises herein alleged, and we put him in full possession of the same, this 31 December, 1844," which is also signed by the twelve jurors and by "M. R. Alexander, J. P."
Then there is added as follows: (132)
Judgment against the defendants in this case for $6.20 for the costs. M. R. ALEXANDER, J. P.
The justice stated further, that "as soon as the jury made their report the said Webbs, being present, agreed to give up possession to Durham and pay the costs, and therefore the proceedings were stopped at that point and no further record made."
Durham filed a long affidavit in which he stated his title to the land, and that on 31 December, 1844, a person who was his tenant for that year was leaving the premises, and as he went out the present plaintiffs, intending to get possession, sent some of their goods to the premises, though they did not themselves get into possession, and that he, Durham, fearing that he would be ousted, applied to the justices and got the proceedings instituted. He then states that the defendants abandoned their claim, as stated by the justice, and brought an ejectment against him. Upon the foregoing facts the court, on the motion of Durham, dismissed the writ of recordari because the plaintiffs Webb had not tendered a traverse before the justice, and because the plaintiffs did not apply for the writ at the first term of the court in 1844, but delayed until the second term, in November, 1844. From that decision an appeal was taken to this Court.
Baxter for plaintiff.
Guion for defendant.
As was mentioned in Leatherwood v. Moody, 25 N.C. 129, and Brooks v. Morgan, 27 N.C. 481, writs of certiorari and recordari are most commonly used in this States as substitutes for appeals, so as thereby to obtain a trial de novo upon the merits, which might be had upon an appeal. That is so much the more common purpose to which those writs are applied that it would seem that it began to be thought that such was their only purpose in our law. But, in (133) truth, that application of the writ has grown up in recent times, out of the provision with us for retrials of the facts. When asked for to that end, as it is a favor, in the nature of an extension of the power of appeal, it must be applied for speedily, and any delay after the earliest period in the party's power to apply must be accounted for. But when the recordari is used as the foundation for reviewing summary convictions or other proceedings before inferior tribunals in a case of false judgment, it is in the nature of a writ of error, and in fact always lies as a matter of right. 2 Chitty Gl. Ps., 219. Mr. Chitty, in that part of his work, explains very fully the mode of proceeding on it, whether to reverse the judgment for matter already apparent in the proceedings, or for errors of the magistrate upon questions of evidence received or rejected, or other like matter; and there seem to be many regulations by acts of Parliament on the subject. When, however, it is, as in this case, brought for the sole purpose of reversal for error in the plaint as recorded — for no other is suggested in the affidavit — and that, too, in a case in which no appeal is allowed by law, or, if allowed, there can be no retrial on it, there can be no mistake as to its character. It can be regarded in no other light but as a writ of false judgment; and the plaintiff has a right to assign substantial errors and have the judgment of the court upon the matter of law. It was for that reason that the writ was sustained in Parker v. Gilreath, 28 N.C. 221; for Parker, as a garnishee, could have no trial de novo in the Superior Court, as his liability depended on the garnishment already given before the justice of the peace; yet he was entitled to the judgment of a Superior Court whether in law he was chargeable on that garnishment. It was erroneous, therefore, to dismiss this writ as having been improvidently (134) issued after laches in the plaintiff. Then, as to the other reason, namely, that the plaintiff took no traverse before the justice, it plainly proceeds upon a mistaken view of the writ; for that circumstance, if there had been opportunity to take a traverse and an omission, would not preclude the plaintiffs from assigning other errors, patent on the record of the conviction. The court ought, therefore, to have required the plaintiffs to assign their errors, and upon their refusal to do so, according to the course of the court, then the writ might have been dismissed for the want of an assignment. But by this reason the court would determine that the plaintiffs should not assign any errors, though apparent in the plaint, because they had omitted to take a particular defense at a certain juncture. The truth is, however, that there was no finding of any forcible entry or detainer which the plaintiffs could have traversed.
The jury merely found that "Durham holds possession," and they did not find that either of the plaintiffs had entered forcibly or held forcibly. Indeed, they could not have so found, according to Durham's own affidavit, for he states that they were never actually in possession, but that he resorted to this proceeding to prevent them from getting the possession. The whole proceeding was so improper in itself and so informally conducted that it is obvious upon its face there ought to have been no judgment against the present plaintiffs for the costs. However, that matter is not before us now, but will arise when errors shall have been assigned and the record of the plaint looked into with the view to reverse or affirm the judgment. At present we are restricted to the point whether the writ should have been quashed without allowing the plaintiffs even to assign errors, much less to obtain a judgment of the court upon them. We think the order was erroneous, and it must be reversed and the cause remitted to the court below for further (135) proceedings thereon according to law.
PER CURIAM. Reversed.
Cited: Hartsfield v. Jones, 49 N.C. 310; Steadman v. Jones, 65 N.C. 391; S. v. Swepson, 83 N.C. 588; Boing v. R. R., 88 N.C. 63; Weaver v. Mining Co., 89 N.C. 199; Hartman v. Spires, 94 N.C. 153.