{
  "id": 2090083,
  "name": "WILLIAM P. MOORE v. ALEXANDER MITCHELL and THOMAS J. MITCHELL",
  "name_abbreviation": "Moore v. Mitchell",
  "decision_date": "1867-06",
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  "first_page": "304",
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    {
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      "cite": "1 Phil. 304"
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      "cite": "61 N.C. 304"
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "1 Dev. & Bat., 254",
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      "cite": "2 Dev. & Bat., 9",
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  "last_updated": "2023-07-14T20:18:16.220923+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "WILLIAM P. MOORE v. ALEXANDER MITCHELL and THOMAS J. MITCHELL."
    ],
    "opinions": [
      {
        "text": "Reade, J.\nAn irregular judgment may be set aside at a subsequent term. An irregular judgment is one contrary to tbe course and practice of tbe court.\nTbe exigency of tbe writ was to \u201canswer tbe plaintiff of a plea of trespass on tbe case to bis damage fifteen thousand dollars \u201d \u2014 unliquidated damages.\nTbe judgment was: \u201ctbe defendants-failing to appear, judgment final by default is entered against them for $11,160.49, of which $9,233 is principal money.\u201d\nAt tbe next term tbe defendants moved to set aside tbe judgment, and tbe motion was allowed. Tbe question is, Had tbe court tbe power to set aside tbe judgment ?\nOur statute, Rev. Code, c. 31, s. 57, provides that upon failure of tbe defendant to appear and plead, tbe plaintiff may bave judgment by default, which, in actions of debt, shall be final, unless where damages are suggested on tbe roll; and in that case, and in all others not specially provided for, where tbe recovery shall be in damages, a writ of enquiry shall be executed at tbe next term. At tbe appearance term it would bave been regular, and according to -the course and practice of tbe court, to enter judgment by default, (tbe defendant not appearing,) and award a writ of enquiry to be executed at tbe next term, when a jury would pass upon tbe damages, and tbe court render judgment upon the verdict. Here tbe case was not submitted to a jury at all, but the court ascertained tbe damages and gave final judgment. This was certainly irregular, and tbe judgment was properly set aside.\nIn justice to tbe learned Judge who presided, it is proper to say that under leave given to tbe attornies to enter judgment in plain cases, the plaintiff\u2019s attorney, by mistake, entered up the irregular judgment. By plain cases the Judge doubtless meant such oases as are enumerated in section 91 of said statute.\nThere is no error.\nPer Curiam.",
        "type": "majority",
        "author": "Reade, J."
      }
    ],
    "attorneys": [
      "Haughton, for the appellant.",
      "Graham and Strong, contra."
    ],
    "corrections": "",
    "head_matter": "WILLIAM P. MOORE v. ALEXANDER MITCHELL and THOMAS J. MITCHELL.\nIn an action sounding in damages, for an unliquidated money demand, a judgment by default final is irregular, and on motion will be set aside.\nMotion to set aside a judgment by default final, beard before Mitchell, J., at Spring Term, 1867, of the Superior Court of Craven.\nAn action of assumpsit, for an unliquidated money demand, was brought by the plaintiff against the defendants to Spring Term, 1866. The cause was continued to Fall Term, when, the defendants not appearing by attorney or in person, judgment final by default was entered against them \u201cfor $11,160.49, of which $9,233.39 is principal money.\u201d This judgment was rendered on Saturday afternoon of the term, his Honor having instructed the attorneys of the court to enter judgments in plain cases, and it did not appear that he was on the bench when it was entered. Execution was issued upon the judgment, but was afterwards stayed by a writ of injunction.\nThe motion to set aside the judgment was allowed, and the plaintiff appealed.\nHaughton, for the appellant.\nGraham and Strong, contra.\nThe judgment was contrary to the course and practice of the court. Rev. Code, c. 31, a 57 (2) and a 91; Steph. PL, 105; Uartsfidd v. Jones, 4 Jon., 309; Williams v. Beasley, 13 Ire., 112.\nTherefore, being irregular, it should be set aside. Wins-low v. Anderson, 2 Dev. & Bat., 9; Powell v. Joptmg, 2 Jon., 400; Bender v. Askew, 3 Dev., 149; White v. Albertson, ibid, 241; Grumpier v. Governor, 1 Dev., 52; Andrew v. Devane, 2 Hay., 373; Williams v. Beasley, 13 Ire., 112; Keaton v. Banks, 10 Ire., 381; Davis v. Shaver, ante, 18; Sharp v. Pint\u00e9is, ante, 34; Whitley v. Black, 2 Hawk, 179; Pettijohn v. Beaseley, 1 Dev. & Bat., 254."
  },
  "file_name": "0304-01",
  "first_page_order": 314,
  "last_page_order": 316
}