#### Ashley Swaim v. Thomas Fentress.

The writ of certiorari is used in this State as a writ of false judgment, and as a substitute for an appeal. It never has been allowed in lieu of a writ . of error. The latter writ being entirely efficacious for five years, there is no need of the former during that period, and after its expiration, the certiorari being discretionary, should not bo granted, as thereby the limitation to writs of error would be avoided.

The facts of this case, as -collected from the record, are these: Fentress, on the 24th November, 1818, sued out an original attachment against one Williams, returnable to the County Court of Randolph; in which Swaim appeared upon the first notice served on him as garnishee, *602and made bis garnishment on 6th February, 1821, at which term there was a conditional judgment of condemnation of the sum in his hands sufficient to pay the recovery the plaintiff might make. At November, 1821,a judgment by defaultwas entered againstthe defendant JFii-liams, and at February following,the writ of inquiry was executed & final judgmententered against Williams for the sum assessed and costs, and also of absolute condemnation of so much in the hands of the garnishee as was sufficient to satisfy the same. On the 28th Jan. 1829,Swaim applied for a certiorari and supersedeas upon his affidavit, stating that when he had made his garnishment,counsel had advised him,that an attachment would not lie against Williams upon that cause of action, and that he then believed the suit was ended; but that about two years after-wards an execution issued against him on the judgment, when he again applied to other counsel fo have it set aside for irregularity, and was informed that it had been done ; since which time he had not heard any tiling of the case,until, just before this application, he discovered that process liad been kept up against him, and that execution was then out.

On this affidavit a certiorari was granted by Judge Martin-, and on the return of it with the record, various counter affidavits were filed upon the merits.— But it was insisted on behalf of the plaintiff in the certi-orari, that it was immaterial how the merits were; for that the judgment against him, as garnishee, was void, because the attachment was not at first served on him, but on another person, who disclosed that he, Swaim, was William’s debtor, and lie was then summoned and made his garnishment; whereas an alias attachment should have been levied in his hands; and also for that, the judgment against the principal defendant, Williams,was void, because an attachment would not lie for the de^ mand therein sued on, and because there was no sufficient affidavit of the demand, and because the attachment was not under the seal of the justices of the peace. For these reasons, his Honor Judge Norwood, at Ran* dolph, on the last circuit, sustained the writ, and made *603the supersedeas absolute; ami the defendant in the certio-rari appealed to this court.

The opinion of probable^ssuo^of a «suit, does not negiectingTo^ap-

The Superior Court may, by versV^th^jrág-mentoftheCoun-Or EnnmT'fo any way, quash them, a»nullMesCt^em

Mendenhall, for the defendant.

No counsel appeared for the applicant.

Ruitin, Chief-Justice

After stating the record of the attachment against Williams, and the facts as above mentioned, proceeded as follows: — Deeming this, for the present, an appropriate remedy, for the applicant, we are far from thinking he has entitled himself to it. It is intended to supply the place of an appeal, of which the party has been deprived, or which he has lost by accident; and is an extraordinary remedy, accessible only to one who lias been injuriously denied the ordinary one of appeal, or who has merits, and lias been diligent, as far as he could be, in applying for this. The case upon the merits is abandoned from necessity; for upon looking into the garnishment, it is clear the party owed the debt condemned in his hands, and that it was the subject of condemnation. But if it were otherwise, no sufficient reason is given for not praying an appeal, nor excuse for delay in making this application. The suggestions of Counsel as to tiic future disposition of the case wer® altogether inadequate to authorise the total inattention to its progress. We should think therefore upon these grounds, that the certiorari ought to bo dismissed. But as the decision was not made upon them, it is proper the court should further consider the other points.

We understand his Honor to annul and reverse tho judgment °f the County Court, as erroneous, or to de-clarcit null and void in itself. We arc not aware of any Power‘ *n one court to supersede the judgment of anoth-by direct order, as being merely void. The court whose judgment it is, may expunge it, or when acted on, another court may pronounce it inefficacious t° authorise the acts professed to be done under it. The proceedings of inferior magistrates, not according to the course of the common Jaw, may bo reviewed and Quashed by a court of general superintending jurisdic-*604diction. But not so of those of a court of record, proceeding according to the common law and having jurisdiction. They may be reviewed and reversed, but not quashed or directly superseded as nullities upon having the record brought up. Whitly v. Black, (2 Hawks 179). Regarding this writ however,as bringing up the record and judgment to be reviewed in the matter of law, it is our opinion, that it cannot be sustained. It might be questioned whether any or all of the alleged defects would entitle the plaintiff to reverse the judgment. That which he relies on, as being the specific error in the judgment a* gainst himself, we think is not an error. The statute authorizes and directs tiie garnishee to be summoned twice before a judgment shall be entered against him, for want of appearance; but if he appear and answer upon the first subpoena, the second is unnecessary and not required. "Whether the garnishee can allege errors in the process or judgment against the defendant in attachment, or whether these are such as he can assign; or whether they be errors for which the judgment should be reversed on a writ of error, might all admit of debate. But the court does not deem it necessary to express an opinion on them; because admitting the affirmative thro-out, it seems clear to us, that a certiorari is not the proper mode of taking advantage of them, but only a writ of error; which it has been held, lies for a garnishee. Haughton v. Cox, ( Conf. Rep. 157).

The writ of certiorari has been used here as a writ of false judgment, or in aid of that writ. It has also been used as a substitute for appeals allowed by our law for a second trial of facts. Its most frequent and important application in this State has its foundation in the right of appeal for that purpose. But it never has been allowed as a substitute for a writ of error, and where one would lie, to bring under review mere matter of law apparent on the record of the County Court. It never can be allowed for that purpose; because there is no necessity for it, since a writ of error operates, under our statute, after security is given, as a supersedeas, and relieves *605the plaintiff in error, until a judgment of affirmance— That writ can be sued at the parties’ pleasure, until the expiration of the period by which it is limited, and when the law does not suffer errors to be regarded, even if they exist. During that period, the party must be confined to the remedy by writ of error, because it is complete and could not be more so upon certiorari. After that time has elapsed, certainly the writ of certiorari, which is extraordinary and merely discretionary, cannot be granted; for that would be an evasion'of the law limiting writs of error and giving a substitute for a remedy which is itself barred. Upon each principle, the judgment must be reversed and this writ dismissed. Here no issue of fact was joined between the plaintiff and the garnishee; but the judgment was on the confessions in the garnishment itself. If erroneous, the garnishee might have appealed at the time or sued his writ of error within five years as his next best and common law remedy. That being adequate, a certiorari could not be useful or granted to him. It was not a fit case for that writ; but if it were, he could not have it after five years,by which all errors are cured and the judgment irreversible in any way. Here, there w-ere eight years from the judgment against the garnishee, and about seven from the final one against him and the defendant, before this writ was sued out.

The judgment of the Superior Court must therefore he reversed, and the certiorari dismissed, and judgment rendered under the statute against the plaintiff in the certiorari and his sureties, for the amount of the recovery in the County Court, and the costs there, and also, for the costs in the Superior Court and in this Court.

Per Curiam. — Judgment reversed'.