1. A Superior Court cannot entertain an appeal to revise the exercise of a discretionary power by an inferior court, when the decision of the latter is made as a matter of discretion; but if the decision were made as a matter of strict right, and upon the supposition that the inferior tribunal had no discretion, it will be reversed, and the inferior court ordered to proceed in the cause in the exercise of its sound discretion.
2. When the principal obligor in a bond given for his appearance at the county court, to take the benefit of the act for the relief of insolvent debtors, is regularly called at court, and, failing to appear, judgment is rendered against him and his surety in the bond, the surety has no right ex debito justiciae to come in on a subsequent day of the term and have the judgment set aside in order to allow him to make a surrender of his principal. In such case the court may, undoubtedly, in the exercise of a sound discretion, set aside the judgment and allow the surrender; but it is not obliged to do so, and ought not to do so but upon good cause shown, as that the party has a good defense, and was kept away by accident or misfortune.
RUFFIN, C. J.
The Court has entertained some doubt whether this appeal was proper, inasmuch as the decision was on a point within the discretion of the inferior court. But we have supposed that we are bound to entertain it, since it is certain that the decision was not made in the exercise of the discretion of the court; but, on the contrary, upon the idea that the party was entitled to it ex debito justiciae. It appears affirmatively that the county court, so far from acting on its discretion, denied that it possessed any discretion in the matter, and gave its judgment under the notion that it had no discretion, but was obliged to make that decision as a matter of strict right in the party. In that opinion that court was unquestionably wrong; and it is for the purpose of correcting that error that we deem this a fit case for the interposition of the higher courts.
Parties must be in court in apt time, and attend to their cases in their due order. Although the term is, to some purposes, but one day, by a legal fiction, yet that maxim has no reference to a question of this kind. It gives the same efficacy to all the proceedings of the term by putting them on the same footing, whether they be transacted at an earlier or latter hour or day. But it does not suppose that all the business is or can be transacted at once, so as to authorize each suitor to postpone his case to the heel of the court. That would (108) defeat the whole business of the court; for if each suitor can claim to the last moment of the term to make himself ready, no cause could be tried. Parties must come, not when they please, but when the court calls them. They have no right to stay away, much less a right, when they come, to have what the court has done set aside, without showing any cause but their pleasure for so doing. The rules of practice, as to the order of doing business, are generally well understood by the officers and practitioners of each court, and their observance promotes the convenience of the court, the suitors and their counsel and attorneys, and prevents surprise. We believe that most of the courts have a fixed day in each term for disposing of cases under the act of 1822. But whether it be so or not, whenever a judgment has been regularly taken, according to the course of the court, it is beyond the control of the party, except by appeal. He must apply to the court to set it aside upon good cause shown: as that he has a good defense, and was kept away by accident or misfortune, and not by his fault. In that case the court, as an act of sound discretion, may undoubtedly set aside the judgment and hear the party de novo. But the court is not obliged to do so in every case, and ought not to do it in any but upon cause shown.
The county court, therefore, erred in the opinion that the debtor and his surety had a right to have the judgment rescinded, and, consequently, erred in rescinding it on that ground. It must, therefore, be reinstated; the Superior Court will issue a writ of procedendo to the county court.
PER CURIAM. Affirmed.
Cited: Phillips v. Lentz, 83 N.C. 243.
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