#### JAMES SLOAN *vs.*WILLIAM McLEAN.

Where a judgment was rendered by a justice of the peace against an absent party, and the party within ten days thereafter applied for relief, under the act of Assembly, Uev. Stat. eh. 62, sec. 15, the justice has no right summarily to vacate the judgment. Such an order is void.

It was the duty of the justice to issue a notice to the opposite party and an order to summon, witnesses and produce all the papers before him or some other justice ,at some day within thirty days, in the meantime directing a forbearance of proceedings, on which appointed day the case should be reconsidered. '

When a justice, on such application, made an order at once vacating thejudgment, and no further proceedings were had thereon ; *Held,*that tile order noi being warranted by law, the original judgment remained in full force."'.

• Appeal from the Superior Court of Law of Iredell County, Fall Term, 1850, his Honor Judge Settle presiding.

This was an action commenced by warrant before a justice of the peace on a former judgment, as follows : “ Au'gust 15th, 1844. '

“ Judgment by default in favor of plaintiff, principal $30, costs 30 cents.

(Signed) NEIL McAULEY, J. P. (Seal.)

The defence was, that the , former judgment had been, vacated ánd made void by the granting of a new trial.

Neil McAuley, the magistrate, who gave the judgment, swore, that the, defendant, eight days after, the rendition of the judgment,'applied to him fora new trial. He could not say, whether he swore the defendant or not; but the defendant was absent on the day he gave the judgment, and upon his . application he granted a new trial and drew up and signed a paper as follows :

*261“ STATE .OF NORTH CAROLINA — Iredell County.

■ To Thomas McConnell, Const:' Whereas,-William Me-Lean hath this day applied to me, Neil McAuley, one of the justices of the peace for said county, for'a gupersedeas, or new trial, in the case wherein James Sloan is plaintiff and the said William McLean is defendant, tried before meat James Sloan’s, on the 15 th of this inst.,-when and where the plaintiff obtained a judgment in the absence of the defendant: I do hereby supersede and make void the said judgment. This is, therefore, to command you to notify the plaintiff, that a new trial in the said case will be held before me at the School House, on the 2d Saturday of September next, when and where you are to return the said judgment, together with all the proceedings in the case. Given under my hand and seal, August 22d, 1844.

(Signed) NEIL MoAULEY, J. P., (Seal.)

He tendered this paper to the defendant, who declined taking it, but requested the witness to hand it to the officer, as he would be more likely to gee him first: Witness put the paper among his private papers, where it has remained -ever since, until a few days before the term of the Court: He did not see the officer until a few weeks after the “ second Saturday of September:” He then told him what had been done : He had no recollection of attending on the day appointed for the trial. One Graham swore, that, according to his recollection, the justice of the peace and the defendant did appear at the “ School House” on the day named, but neither the plaintiff nor the officer was present. There was no evidence, that the plaintiff had any notice of the application for the new trial. ■

The jury rendered a verdict for the plaintiff, subject to' the opinion of the Court, upon the question of law reserved; and the Court, being of opinion with the defendant, set aside.the verdict, and directed a non *suit;*and the plaintiff appealed.

*Osborne,*for the plaintiff.

*Boy den,*for the. defendant.

*262Pbauson, J.

The question depends upon the legal effect of what was done by the magistrate, and involves the construction of the statute, Rev. Stat. ch. 62, sec. 15. We think the matter was left unfinished, and was not carried out, so as to have the effect of vacating and making void the first judgment. We lay no stress-on the fact, that it does not appear that the defendant was sworn, or gave the-security required. The magistrate misconceived the power conferred on him by the statute. He had no power, upon the *ex parte*application of the defendant, to vacate the judgment. He had power only to issue certain process; the result of which would be, if carried out, a reconsideration or “new trial.” If that took place, the first judgment was, of course, vacated. If it.did not, then the first judgment remained in full force. Accordingly, the Statute directs the magistrate to issue an order to the party or officer who has the papers in possession, to forbear all further proceedings, and immediately to bring all the persons before him, or. some other jústice of the peace, for “ reconsideration.” It further directs him to issue his summons to some proper officer to cause the parties, with their witnesses, .to appear before him, or some other justice of the peace, within thirty days, when “ the matter shall undergo a fair investigation.” It is this “ fair investigation,” “ reconsideration,” or “ new trial,” which vacates the first judgment; and of course, if it never takes place, the judgment stands in full force. ■ The magistrate is directed, without enquiry into the merits of the case, to issue process, for the purpose of having the parties together. If the party, who applies for the processor one, whom he chooses to depend on, as his agent, neglects to have it served, and, in consequence thereof, no “reconsideration” or “new trial,” takes place; it is his misfortune. In consequence of his being absent at the trial, if it is sufficiently accounted for, an opportunity is given him to have a new trial, provided he uses the-means .necessary for, that purpose. This meets the .necessity'' of the'.'cdse. *263The construction, contended for by the defendant, goes beyond it, and would lead to injustice; for, if the application or order for process had the effect of vacating the judgment, that end being effected, most defendants would not take the trouble to proceed any further; so the plaintiff would be left to find out by accident, that their judgments were void, and to get new judgments in the best way they could.

This strange view of the Statute, no doubt, was. suggested by a supposed analogy between a new trial before a .single justice, and a new trial in Court. But there is a very great difference. In the .one, the matter is “ *in fieri”*and the parties are “ in Court,” until the end of the term; so that, if a new trial be’granted, the parties are. *ipso facto*put in *“statu*quoNot so in the other. As soon as the justice gives his judgment, he is *functus officio,*and the parties are “ out of his Court;” so that, nothing can be done to affect the judgment, until the parties are brought into “his Court” again by a new process. There is a greater analogy to the writ of error. There, the parties being “ out of Court,” the judgment is merely1 suspended, until the proceedings are “ carried out” and finished by a new judgment.

The judgment below must be reversed; and a judgment for the plaintiff.

Phr Curiam. Judgment accordingly.