An omission to give the notice of appeal required by section 535, of the Code of Civil Procedure, strictly within the ten days therein provided for, is not so serious a default, as will preclude a party from the right to have his case heard by recordari. Marsh v. Cohen, 68-283. A writ of certiorari can only issue to the court wherein the cause is pending. Therefore, when the cause has been carried by appeal to the Supreme Court, the petition for the writ to the court below should be dismissed. Williams v. Williams, 71-427. In a petition for a certiorari, where the counsel on opposing sides make sworn contradictory statements to each other, the Supreme Court will not decide between them; and taking no notice whatever of any pretended agreement between the counsel in the court below, not appearing upon the record, this court will hold the parties strictly to the provisions of the C. C. P. Rouse s. Quinn, 75–354. A defect in the name of a defendant in the summons is cured by a judgment by default rendered against him. When such judgment is taken before a justice of the peace, and carried by appeal to the Superior Court, it is the duty of the Court to make the proper amendment and proceed with the trial upon the merits. But when the defendant in such case took an appeal from the justice and failed, for seven terms, to make any motion to dismiss, he thereby waived the irregularity complained of. Clawson v. Wolfe, 77-100. TITLE XIV. OF THE MISCELLANEOUS PROCEEDINGS IN CIVIL ACTIONS AND GENERAL PROVISIONS. CHAPTER I. SUBMITTING A CONTROVERSY WITHOUT ACTION.a SEC. 315. Controversy, how submitted | SEC. 317. Judgment, how enforced or without action. 316. Judgment. appealed from. {315.-Controversy-how submitted without action. Parties to a question in difference, which might be the 7927 subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, a I do not find any discussion of interest, regarding the procedure in submitting a controversy without action, and therefore, only cite the cases, which I have found in which this valuable provision has been resorted to as a means for the ascertainment of right. and the proceeding in good faith, to determine the rights of the parties. The judge shall thereupon hear and determine the case, and render judgment thereon, as if an action were depending. Bates v. Lilly, 65-232; Johnson v. Cross, 66-167; Hervey & Co. v. Edmunds, 68-243; Pullen v. Com'rs of Raleigh, 68-451; Hager v. Nixon, 69-108; McKethan v. Ray, 71-165; Lewis v. Com'rs of Wake Co., 74-194; Dixon v. Coke, 77-205; Holland v. Isler, 77—1. ? 316.—Judgment. Judgment shall be entered in the judgment docket, as in other cases, but without costs for any proceeding prior to trial. The case, the submission, and a copy of the judgment shall constitute the judgment-roll. The costs of the trial shall be five dollars. {317.-Judgment—how enforced or appealed from. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in like manner. CHAPTER II. PROCEEDINGS AGAINST JOINT DEBTORS, HEIRS, DEVISEES, LEGATEES, AND TENANTS HOLDING UNDER A JUDGMENT DEBTOR. 318.-Parties not summoned in an action on joint contract, may be summoned after judgment. When a judgment shall be recovered against one or more of several persons jointly indebted upon a contract, by proceeding as provided in section eighty-seven (§ 87), those who were not originally summoned to answer the complaint may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned. Navassa Guano Co. v. Willard, 73-521. ? 319.—If judgment debtor die, his representatives may be summoned. In case of the death of the judgment debtor after judg ment, the heirs, devisees, or legatees of the judgment debtor, or the tenants of real property owned by him and affected by the judgment, may, after the expiration of three years, from the time of granting letters testamentary or of administration, upon the estate of the testator or intestate, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively; and the personal representatives of a deceased judgment debtor may be so summoned at any time within one year after their appointment. The personal representative of a deceased judgment debtor, if there be any, shall always be parties to any summons against his heirs, devisees, legatees or tenants, to enforce the judgment. The proper remedy to subject an executor personally, or to enforce a judgment against a deceased party's estate, or a debtor jointly liable with the defendant, is by a motion in the original cause, and. not by a new action. McDowell v. Asbury, 66--444; Navassa Guano Co. v. Willard, 73-521. 320.-Form of summons. The summons provided in the last section shall be signed by the clerk of any court in which the judgment was docketed before the death of the debtor, and in which he had property affected thereby, but shall be made returnable to the court in which the judgment was recovered; it shall describe the judgment, and require the person summoned to show cause within twenty days after the service of the summons; and shall be served in like manner as the original summons.a Navassa Guano Co. v. Willard, 73–521. a QUÆRE.-Does the "Act suspending the Code" operate to change the form or return day of the summons provided by this section? It is evident, from the language of the subsequent sections, that this proceeding is regarded by the Code, as something distinct from an action-a special proceeding, regulated by this chapter, and only as provided therein, governed by the other provisions of the Code. {321.-To be accompanied by affidavit of amount due. The summons shall be accompanied by an affidavit of the person causing it to issue, that the judgment has not been satisfied, to his knowledge or information and belief, and shall specify the amount due thereon. Navassa Guano Co. v. Willard, 73-521. 322-Party summoned may answer and defend. Upon such summons any party summoned may answer within the time specified therein, denying the judgment, or setting up any defence thereto which may have arisen subsequently to such judgment; and in addition thereto, if the party be proceeded against according to section three hundred and eighteen ($318), he may make any defence, which he might have made to the action if the summons had been served on him at the time when the same was originally commenced, and such defence had been then interposed to such action. Navassa Guano Co. v. Willard, 73-521. { 323.-Subsequent pleadings and proceedings same as in action. The party issuing the summons, may demur or reply to the answer, and the party summoned, may demur to the reply; and the issues may be tried and judgment may be given in the same manner as in an action, and enforced by execution, or the application of the property charged to the payment of the judgment may be compelled by attachment, if necessary. 324.-Answer and reply to be verified as in an action. The answer and reply shall be verified in the like cases and manner, and be subject to the same rules, as the answer and reply in an action. CHAPTER III. CONFESSION OF JUDGMENT WITHOUT ACTION. SEC. 325. Judgment may be confessed SEC. 326. 327. Statement in writing and 325.-Judgment may be confessed for debt due or contingent liability. A judgment by confession may be entered, without action, either in or out of term, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter. This provision is not repealed or modified by the "Act suspending the Code," 1868-69, Chapter 76. Hervey v. Edmunds, 68-243. The guardian of a lunatic may confess judgment for his ward. McAden v. Hooker, 74-24. 2326.-Statement in writing and form thereof. A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effect: 1. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor. 2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor, is justly due, or to become due. 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and show that the sum confessed therefor, does not exceed the same. McAden v. Hooker, 74-24. 327.-Judgment and execution. The statement may be filed with the Clerk of the Superior Court of the county in which the defendant resides, or if he does not reside in the State, of some county in which he has property. The clerk shall endorse upon it, and enter on his judgment docket, a judgment of the court, for the amount confessed, with three dollars costs, together with disbursements. The statement and affidavit, with the judg |