Elliott v. . Jordan , 44 N.C. 298 ( 1853 )

The plaintiff further alleged that he had no knowledge of but the first of the said different continuances; that he never applied for the same, nor had notice thereof, and that until it was too late to obtain an appeal to court, or a new trial before the magistrate, he supposed that a judgment had been rendered in his favor against both the defendants.

On return of the writ of recordari, the affidavits of the parties, as well as of others, were filed (but deemed unnecessary to state them, etc.); and upon the hearing of the case before Saunders, J., at PERQUIMANS, on the last Spring Circuit, he ordered the same to be placed upon the docket for trial; from which order the defendant, Jordan, prayed and obtained an appeal to the Supreme Court. 1. That the same rules of law apply to recordaris as to certioraris: the only difference being that the former are directed to courts not of record; the latter, to courts of record.

2. In this case the constable was, or was not the plaintiff's agent. If he was such agent, then the agent has neglected the plaintiff's case; if not his agent, then the plaintiff has neglected his case himself. In either event, the case of Baker v. Halstead, ante, 41, is decisive against the plaintiff's petition, and he is remediless, because of neglect of his agent or himself. In the order made at Spring Term, 1853, of Perquimans Superior Court, directing this case to be placed on the trial docket, there is error. In the petition, it is stated that the petitioner took out the warrant and placed it in the hands of the constable. He admits he was notified by the officer of the first appointment for the trial of the cause, when he failed to attend in consequence of being "too unwell." Upon the back of the warrant are three several continuances. Of the first, when the warrant was returned, he had notice; of the (300) others he had none, and was not present at the time the judgment was obtained. The first day appointed for the trial was 22 February, 1851, and after several continuances, judgment was rendered 28 March succeeding. Of all these continuances the petitioner says he was ignorant. By the law, whenever an individual has claims upon others to collect, if within the jurisdiction of a magistrate, he may constitute the constable, into whose hands he puts them, his agent to collect. It then becomes the duty of the constable to discharge all the duties of an agent, and he and his sureties are bound for any negligence or unfaithfulness in the management of the business, and by his acts the plaintiff is bound. If, however, the plaintiff does not choose to appoint the officer his agent, he must attend to the business himself, or have some one to represent him.

In the management of this business, there has been gross negligence in the constable, if he was the agent, in not informing his principal of the obtaining of the judgment in time for an appeal; or, if he was not the agent, then in the plaintiff in not informing himself of the time of trial of the warrant. In either case, the plaintiff has lost his right to the aid of a writ of recordari. Vigilantibus non dormientibus servit lex. The case of Baker v. Halstead, ante, 41, is decisive of this. The judgment below is reversed and the petition dismissed.

PER CURIAM. Judgment reversed.

Cited: Koonce v. Pelletier, 82 N.C. 237.