Opinion
December Term, 1823.
A judgment having been obtained against the defendant in the county court, a ca. sa. issued, and the defendant gave bond to keep the prison bounds. Afterwards the defendant obtained writs of supersedeas and certiorari, and on the return of the certiorari the cause was ordered to be placed on the trial docket. The defendant, after having obtained the writs of supersedeas and certiorari, left the bounds, and on a motion for judgment against the sureties to the bond it was Held, that as it appeared that the cause was ordered to be put on the trial docket before the motion was made on the bond, this order drew after it all the consequences of an appeal from the county to the Superior Court, and totally annihilated the judgment, and rendered the security a nullity.
APPEAL from Donnell, J., at TYRRELL.
(551) Hogg for appellant.
Motion for judgment against the defendant, Hallsey, and two others, his sureties on a bond given by Hallsey, conditioned that he would keep within the prison bounds in the county of Tyrrell.
The case was this: Plaintiff brought suit against the defendant Hallsey in Tyrrell County court, and obtained a judgment by default, whereupon a va. sa. issued, on which Hallsey was arrested and entered, together with the other defendants, into the bond on which the motion was made. After the bond was executed Hallsey obtained on affidavit writs of supersedeas and certiorari to the county court of Tyrrell, and at September Term, 1823, of Tyrrell Superior Court, the certiorari was returned, and the cause ordered to be placed on the trial docket, with leave to Hallsey to plead. This motion was then made on the bond, and plaintiff offered to prove that after the writs of supersedeas and certiorari had been granted and delivered to those to whom they were directed, Hallsey had been seen at large without the prison bounds. The presiding judge, Donnell, refused the motion, and the plaintiff appealed to this Court.
This is a motion for judgment on a bond to keep the prison bounds, the condition of which is alleged by the plaintiff to have been broken by the defendant Hallsey having gone beyond the limits in consequence of a certiorari and supersedeas issued by a judge of the Superior Court. It is urged by the plaintiff that Hallsey, being in custody upon a ca. sa., the supersedeas could not have the effect of legally discharging him therefrom, and those authorities have been referred to, which show that if an execution has been begun it shall be completed notwithstanding the delivery of a writ of supersedeas, or the allowance of a writ of error. That the law is not in England, and that a person in custody upon a ca. sa., is not entitled to his discharge, notwithstanding a writ of supersedeas be delivered to the sheriff, is not to be controverted. It is there held that a capias, being a complete execution, a writ of error comes too late afterwards, and, therefore, the party shall remain in prison, notwithstanding the writ of error. This doctrine pervades the ancient cases, and is admitted, arguendo, in modern ones; but I have met with no case where it has been acted on since the statutes of 3 James I., chs. 8, 16, and 17; Car. 2, ch. 8, where bail has been actually put in, to answer the debt and damages, pursuant to those statutes. It is revolting to common sense that a man who has carried his cause before a higher tribunal under a belief that the law has not been administered to him, or that injustice has been done him below, should be detained in prison after he has given bond as security to respond the ultimate recovery, and that, too, upon the principle that the execution has been executed and cannot be undone. But the Gordian knot might be cut by letting him out of goal. But it is obvious that there is a very remote analogy between the writ of certiorari as used in England and in this State; they are scarcely alike in anything but name. There it sometimes issues out of (552) Chancery, and sometimes out of the King's Bench, and is an original or judicial writ. It does not issue after judgment but in very special cases, and from absolute necessity, as where the inferior court refuses to award execution, then a certiorari will issue after judgment for the sake of doing justice to the parties. So, where the inferior court acts in a summary method or in a new course different from the common law, a certiorari lies after judgment, though a writ of error does not. 1 Lill. P. R., 252-3; 1 Salk., 263. It is, therefore, only in a very few cases that the object of a certiorari can be to obtain a new trial; and when the record is removed before trial, the whole proceedings are begun de noro. It is also to be granted on matter of law only.
In this State the writ is invariably granted after trial in the inferior court; a case must be made out on the merits, upon affidavit, except where it issues to bring up a record appealed from but not filed in time, and the question in the Superior Court always is whether there shall be a new trial. In addition to this, security must be taken by the clerk of the county court to which it issues in the same manner as on appeals. This slight view of the subject shows how little similitude there is between the two writs, and how incongruous it would be to engraft upon ours the strict practice and rigorous principles enforced in the English courts, which may well harmonize with their systems, but are utterly discordant to ours.
The truth is, this writ has grown up with the exigencies of the country, and has been moulded to suit the convenience of the citizens, and although it has been highly assistant in the administration of justice, the principles and rules which govern it emphatically rest on the common law of the State. Much respect is due to long established usage, founded on public convenience, and implicitly sanctioned by legislative recognition. The great utility of the writ would (553) at once be subverted if it did not restore property seized or deliver a man from prison, for the ultimate redress by a new trial would come too late after the worst consequences of defeat had been suffered. I am disposed to adhere to the settled practice of the country, and therefore think the judgment should be affirmed.
I think in this case the court was right in not giving judgment on the bond given to keep the prison bounds, because, had it done so, the plaintiff, as this record shows, would be entitled to a double remedy, namely, one on that bond, and also one upon the proceedings had under the certiorari; for a new trial had been granted on that, and the plaintiff, if he establishes his claim, will on that trial have another judgment. I think the first judgment was done away by granting a new trial, and of course the execution issuing from it is superseded. I see no injury likely to occur on that account, because the law directs that in granting a certiorari new security shall be taken for the debt, against which judgment may be entered up as security for an appeal.
In this case it is not necessary to consider the effect of the certiorari and supersedeas before a new trial is granted in the Superior Court, for upon this record it distinctly appears that before the motion on the prison bounds bond came on a new trial had been granted in the original cause, and that it had been ordered to be transferred to the trial docket. I am well satisfied that by this order, to wit, for a new trial in the Superior Court, all the consequences attending an appeal from the county to the Superior Court follow, namely, a total destruction and annihilation of the judgment in the inferior court as if it had never been; and that the execution which had issued thereon was not only (554) superseded, as that term is understood when applied to the process to stay proceedings which issue after the allowance of a writ of error, but the execution is rendered a perfect nullity, as if it had never been issued; I think, therefore, that the judge did not err in refusing judgment on the motion on the prison bounds bond. A supersedeas should be considered only as auxiliary to the writ which it accompanies or the purposes for which the delay is required. If it be only to review and examine the correctness of proceedings in an inferior court, and to affirm or reverse them, as the case may require; there the supersedeas operates only to stay the proceedings in the situation in which it found them, but where the process is not barely to affirm or reverse the proceedings of the court below, but to annihilate and destroy them, and to examine the case de novo, as if such proceedings had never taken place; there the supersedeas, and most certainly when combined with the proceedings of the court ordering it, annuls entirely the proceedings of the inferior court; it does not barely stay the proceedings in the situation in which it finds them, but certainly with the order of the Superior Court annulling the proceedings, annuls everything done under them. The certiorari in this case is substituted for an appeal, which by accident or some other cause the party is deprived of. What may be its effect when used for this purpose, accompanied by a supersedeas before the awarding of the new trial in the court above, as we have before said, it is not necessary to examine. But when the new trial is granted the whole proceedings become that for which the certiorari was substituted, to wit, an appeal and a trial de novo, both on the law and the facts, is had. This, when attained, either directly by an appeal or circuitously by a certiorari, annuls the judgment of the inferior court, and of course everything done under it must fall to the ground.
The capias ad satisfaciendum, the arrest of the defendant, (555) the bond to keep within the bounds of the prison, are means taken to enforce the performance of the judgment. When the object for which they were resorted to no longer exists, they must cease. There was nothing to pay, no judgment to satisfy and the defendant was left as if he had never been arrested.
PER CURIAM. Affirmed.
Cited: Otey v. Rogers, 26 N.C. 537.