Arrington v. . Bass , 14 N.C. 95 ( 1831 )

On the last circuit, his Honor, Martin, J., reversed the judgment of the county court, and the plaintiff appealed. The first notice we have of this case is at August Term, 1829. At that term the case was continued upon cause shown by the defendant Bass, and the court, by the Act of 1822 (Rev., ch. 1131), had the power to continue it upon sufficient cause shown. Suppose, for instance, that owing to some unavoidable accident, the defendant had it not in his power to prove that he had given ten days notice to his creditors or their agents, or attorneys, of his intention to avail himself of the benefit of the act, the court could not do otherwise than grant a continuance. At November Term judgment was given against the defendant, and nothing illegal appears in that. The reason why it was entered nunc pro tunc is not obvious. But certainly they ought to have given judgment, because it does not appear that the defendant Bass then made his appearance, or caused it to be entered. The bond which he gave for his appearance was as obligatory on him to attend then as at the preceding term, when the continuance was granted at his instance. Mooring v. James, 13 N.C. 254. And as he did not enter his appearance at the subsequent term, judgment against him was the legal consequence.

PER CURIAM. Judgment reversed.

Cited: Wilkings v. Baughan, 25 N.C. 89.