{ "id": 1955401, "name": "THOMAS W. HUDGINS v. PETER F. WHITE et al.", "name_abbreviation": "Hudgins v. White", "decision_date": "1871-06", "docket_number": "", "first_page": "393", "last_page": "395", "citations": [ { "type": "official", "cite": "65 N.C. 393" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "52 Maine 531", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 648085 ], "opinion_index": -1, "case_paths": [ "/me/52/0531-01" ] }, { "cite": "65 N. C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955514 ], "opinion_index": -1, "case_paths": [ "/nc/65/0054-01" ] }, { "cite": "63 N. C. 565", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 } ], "analysis": { "cardinality": 312, "char_count": 4908, "ocr_confidence": 0.454, "pagerank": { "raw": 5.512075073484596e-07, "percentile": 0.94638548425024 }, "sha256": "739369d639a6a29f9680878f614e3373f42a53266b9d8188a53b679eeae419ce", "simhash": "1:49b3a605003cc24b", "word_count": 877 }, "last_updated": "2023-07-14T18:41:56.423501+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS W. HUDGINS v. PETER F. WHITE et al." ], "opinions": [ { "text": "Reade, J.\nThe Code, s. 133, provides, that a Judge may, in his discretion, and upon such terms as may be just, at any time within one year, after notice, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertance, surprise or excusable neglect.\nIn this case the motion was made more than a year after its rendition; but it was agreed to be considered as if it had been made within time. So there is no difficulty about that.\nHis Honor heard evidence as to the facts under which the judgment was rendered; and refused to set it aside because he supposed he had not the power.\nWhat were the facts, was a question exclusively for his Honor. In such cases the Judge is the trier of the facts, as the jury is in ordinary cases; and from his finding there is no appeal.\nAfter hearing the evidence and finding the facts, it is discretionary with the Judge, to set aside the judgment or not; and from the exercise of his discretion, there is no appeal. But this must be understood with the qualification, that it is not altogether an arbitrary discretion; for, if in ascertaining the facts, or exercising his discretion, he make a mistake of the law, that mistake can be appealed from. As, for instance, it \u25a0competent evidence be offered and rejected; or, if he mistake the meaning of the statute as to what is, \u201c mistake, inadvertence, surprise, or excusable neglect.\u201d In such case he may be reviewed; because that is not the exercise of a discretion, but a misapprehension of the law; and no one has a discretion to misapply the law. So, in the case of an application for the removal of a case, the Judge has a discretion, the exercise of which we cannot review, unless it appear that some principle \u25a0of law is misconceived and misapplied.\nIn the case before us, his Honor did not exercise his discretion upon the merits, but supposed that he had no \u201cpower \u201d to \u00abet the judgment aside, even if the merits required it. Whether he had such power, is a question of law. We think he had the power.\nThere is error. Let this be certified.\nPer Curiam, Error.", "type": "majority", "author": "Reade, J." } ], "attorneys": [ "J. A. Moore and Phillips c& Merrimon, for plaintiff.", "Smith, for defendants." ], "corrections": "", "head_matter": "THOMAS W. HUDGINS v. PETER F. WHITE et al.\nThe O. O. P. see. 133, makes it discretionary with a Judge whether he* will relieve a party against a judgment taken against him through his-\u201cinadvertence, mistake, surprise, or excusable neglect.\u201d If a Judge refuses to entertain a motion to set aside a judgment for any of the enumerated causes, because he thinks hechas no power to grant it, then, there is error, and he has failed to exercise the discretion conferred on him by law.\nAfter hearing the evidence and finding the facts under the above recited! section ot the C. C. P., the action of the Judge is conclusive upon the-parties, from which there is no appeal.\nThis discretion, however, is not arbitrary, but implies a legal discretion. As for instance, if the Judge mistake the meaning of the statute as to-what is \u201cmistake, inadvertence, surprise, or excusable neglect.\u201d In, such cases his judgment is the subject of appeal and review.\nMotion to set aside a judgment heard before Pool, J., at Spring Term, 1871, of Chowan Superior Court.\nThe facts were, that at Fall Term, 1869, the present plaintifF upon the relation of the State of North Carolina obtained judgment against the defendant White and others, on the official, bond of said White as Sheriff of Chowan County. The suit was instituted in the year 1861, and tried upon the issues presented by the defendant\u2019s pleas, to wit: \u201cCovenants performed and no breach.\u201d\nIn August, 1868, the defendant, Bond, filed his petition im bankruptcy, and received his certificate of discharge some time? in 1869. The bankruptcy of said defendant was not suggested during the pendency of said suit, nor after he received his certificate of discharge from the Court of bankruptcy did he plead, the same, at or before the rendition of judgment in this case,, but from facts not necessary here to state he was led to believe^ that a nol.pros. had been .entered as to him.\nIt is conceded that the motion to set aside said judgment; shall be regarded as made within the time prescribed by law-\nHis Honor refused to allow the motion, upon the ground that he had no power to grant it, from which ruling the defendant White appealed to the Supreme Court.\nJ. A. Moore and Phillips c& Merrimon, for plaintiff.\nSmith, for defendants.\n1. A motion in the cause was the proper course. Caldwell v. Bank Cape Fea/i\\ Mason v Miles, 63 N. C. 565, decide that the present action cannot be sustained.\nObjection not raised in the pleadings can be taken ore tenus Counoil v. Rivers, 65 N. C. 54.\n2. Equity would not relieve upon the facts contained in the \u25a0complaint. 2 Story\u2019s Eq. Jur, sec. 1572, 1573, 1574.\nA Note taken by a bank in payment of a pre-existing debt is not discounted. &c. lime Rook Bank v. Hewett, 52 Maine 531. Morse on Banks and Banking, 20. Vide Code, sec. 133." }, "file_name": "0393-01", "first_page_order": 403, "last_page_order": 405 }