Cumberland County NcArchives Court.....Mathews, Vs. Moore 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:13 pm

Source: North Carolina Reports
Written: 1811-18

July Term 1812.

MATHEWS & McKINNISH v. WILLIAM MOORE and CLAIBORN HARRIS.

From Cumberland.

Judgment set aside upon motion for irregularity. Judgments confessed before 
the clerk, where there is no court, are irregular, and will be set aside upon 
motion. The rendering of a judgment is a judicial act to be done by the court 
only.

This was a motion to set aside a judgment for irregularity. A writ was sued 
out at the instance of the plaintiffs against the defendants, returnable to 
the Superior Court of Law for Cumberland, at Spring Term, 1811, the service of 
which was acknowledged by the defendants on 4 March, 1811, and the following 
indorsement was made:

Service acknowledged 4 March, 1811. 
Wm. MOORE,
C. HARRIS.
Teste: D. McINTIRE.

Judgment confessed by the defendants in person, agreeably to the specialties 
filed. Any credits that shall appear on statement between the plaintiffs and 
William Moore to be admitted. 

Stay of execution six months.

Wm. MOORE,
C. HARRIS.

Afterwards, during the week appointed by law for holding the court in April, 
1811, the clerk entered up judgment agreeably to this indorsement; and when 
six months had expired he issued execution for the debt and costs. William 
Moore, one of the defendants, applied to one of the judges for a writ of 
supersedeas, and made an affidavit setting forth "that some time in the week 
assigned by law for holding the Superior Court in the county of Cumberland, in 
the spring of 1811, he and Claiborn Harris confessed a judgment before the 
clerk of said court to Mathews & McKinnish, for the sum of £450 or 
thereabouts, with costs. That there was no Superior Court holden for the 
county of Cumberland in the Spring of that year, by reason of the 
indisposition of the late Judge Wright; and that he was advised the said 
judgment was irregular and ought to be set aside." A supersedeas was awarded, 
and at the next term of the court the judgment was set aside, and the 
plaintiffs therein appealed.

Hall, J. It cannot be seriously contended that the judgment in this case is 
regular and legal. What authority has the clerk to enter up judgment where 
there is no court? It is his business to record the proceedings of the court; 
but the rendering of a judgment is a judicial act, to be done by the court 
only. 

The judgment is irregular and must be set aside.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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