JOHN REYNOLDS vs. WILLIAM BOYD.
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.
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 justicia;, 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 shewn, as that the party has a good defence, and was kept away by accident or misfortune.
The defendant was arrested under a capias ad satisfaciendum, and gave a bond with security, to make his appearance at the ensuing term of the County Court of Buncombe, to take the benefit of the act of 1822, (1 Rev. Stat. ch. 58, sec. 7,) for the relief of insolvent debtors. The ca. sa. and bond were duly returned to court, and, on Tuesday of the term, to which he was bound to appear, the defendant was called at the door of the court house; and, failing to appear, judgment was rendered against him and his surety on the bond. On Thursday of the term, the agent of the surety proposed to surrender the defendant, and have the judgment set aside. The plaintiff objected, on the ground that unless he could shew good cause for his absence, the surety had not the right to remain out of court until the latter part of the term; and, after the plaintiff had obtained judgment, then to surrender the defendant and vacate the judgment. The court were of opinion that, as the whole term was considered as one day, the surety was entitled to the whole term to make the surrender, without shewing why he had not appeared at the first of the term; and ordered that the surrender be. recorded, and the judgment be rescinded. From this judgment the plaintiff *107appealed to the Superior Court; and it was agreed that the question of law as to right of the surety, ex debito justicies, to surrender his principal at any time after the rendition of the judgment during the term, should be presented, upon the above statement of facts, without prejudice to either party on account of any discretion in the court beloiv. In the Superi- or Court, his honor Judge Hall was of opinion that the County Court erred in supposing that the surety had a right, ex debito justicies, to have the judgment set aside, to enable him to make a surrender of his principal; and ordered that opinion to be certified to the court below, with directions to proceed thereon. From this judgment the defendant appealed to the Supreme Court.
No counsel appeared for either party in this Court.
Ruffin, Chief Justice.
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 justicies. 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 later hour or day. But it does not suppose that all the business is, or can be transacted at once, so as to authorise each suiter to postpone his case to the heel of the court. That! *108would defeat the whole business of the court; for, if each suican to ^le ^ast 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 shewing 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 that 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 shewn; as that he has a good defence, 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 shewn.
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 re-instated; and to that end, this opinion must be certified to the Superior Court, that a writ of procedendo may issue therefrom to the County Court to act accordingly.
iPpp, Ctjriam. ' Judgment affirmed.