Orange-Johnston County NcArchives Court.....Brachen, V. Colquhoun Et Al 1826
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 9, 2009, 12:00 am

Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

BRACHEN v. COLQUHOUN et al. 

From Orange.

In the Court below an order of publication as to J. C., an absent defendant—
and afterwards an order setting the cause down for hearing and removing it to 
this Court. It did not appear from anything in the transcript that the 
publication had been made, or a pro confesso taken.

Held, that setting the cause for hearing was irregular. This Court can take 
cognizance of a cause removed, only after it is set for hearing below. An 
irregular order setting the cause down for hearing is equivalent to no order—
therefore this Court cannot proceed. 

In this case one of the defendants was a non-resident, and in the Court below, 
an order of publication was (411) made, but it did not appear from the 
transcript filed in this Court that the publication had been made; nor was 
there any judgment pro confesso entered against the absent defendant—but the 
cause had been set for hearing below.

When the cause came on here to be heard, Badger of counsel, desired to know, 
if he might proceed in the hearing, upon the presumption that, as the cause 
was ordered to be heard, all the preceding steps necessary to make that order 
proper, had been taken. The Judges at first appeared to differ in opinion; but 
it was agreed if proof of the publication could now be shown, the judgment pro 
confesso might be entered nunc per tunc. The hearing was then postponed, to 
give time for the production of such proof; but at an after day, Badger 
informed the Court, that no such publication could be found in the Gazette, 
and prayed, if the Court should be of opinion that the cause could not be 
heard without such proof, that it might be remitted to the Court below for 
further proceedings.

Henderson, Judge.—Upon principle, the order for setting the cause for hearing, 
presupposes that the conditional order for taking the bill pro confesso as to 
Jennett Colquhoun, had been made absolute, for the former order could not 
regularly have been made without the latter, that is, the cause could not have 
been properly set for hearing without the defendants having answered, or been 
in contempt for not answering. And in ordinary cases, where the defendant is 
in Court, it should not be required to be shown expressly, that all 
proceedings have been regular. This regularity may be fairly inferred by 
showing an order or proceedings of the Court, which could not have been 
properly done without such previous proceedings. But it would be improper to 
draw such inference in cases where the defendant is not in Court, for its 
foundation in some measure fails; we should not give to the service by 
publication, all the consequences of personal notice, so far as regards (412) 
all the proceedings in the cause, it is sufficient if we give to it the direct 
effects prescribed by the Legislature. The management of the cause in such 
cases is entirely in the hands of the complainant, and we are aware that it is 
impossible, with the utmost vigilance of the Judge, to preserve to an absent 
defendant all his rights; it is sufficient to award to the plaintiff all his 
direct advantages, without conferring any on him by inference. I am, for these 
reasons, for considering the rules for taking the bill pro confesso as 
conditional, it never having been made absolute; if the complainant could show 
that he had made publication, he might have it made absolute nunc pro tunc. 
This Court haying jurisdiction only in cases set for hearing in the Superior 
Ccurt, and an irregular order to that effect being as no order, the cause must 
be remanded; it was never properly here.

Taylor, C. J., and Hall, concurred.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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