¶1 It was error in the superior court of Burke county to tax the prosecutor in a criminal action in that court with the costs of a like action wherein he was prosecutor pending in the superior court of Watauga county. If there was a criminal action and grounds therein in the latter court for taxing the defendant as prosecutor with the costs of prosecution, the order and judgment ought to have been made in that court, not in the superior court of Burke county.
¶2 It is settled, also, that the court cannot order the prosecutor to ■pay the costs of prosecution when the grand jury returns the bill of indictment “not a true bill.” State v. Cockerham, 1 Ired., 381. The law, as applicable to this case, has not been changed since that decision was made.
¶3 The court, however, properly refused to grant the motion. *583 The judgment was entered at the fall term, 1880, and more than twelve months had elapsed before the motion was made, so that the court could not set aside the judgment because of “mistake, inadvertence, surprise or excusable neglect.”
¶4 Nor could the court set it aside because it was an irregular judgment. An irregular judgment may be set aside at a term subsequent to that at which it was given (Wolfe v. Davis, 74 N. C., 597), but the judgment in this case was not irregular. The defendant was prosecutor; he was properly in court. The law presumes he was present and took cognizance of all that was done in and about the prosecution and the judgment against him. It was his fault and neglect if he were not actually present. His actual presence was not necessary to enable the court to give judgment, and his presumed presence was sufficient. State v. Owens, 87 N. C., 565; State v. Spencer, 81 N. C., 519. The court had jurisdiction and authority to grant the judgment.
¶5 As it appears in the record before us, the judgment was erroneous, and such a judgment cannot be set aside at a subsequent term of the court because of such rulings as render it simply erroneous. Wolfe v. Davis, supra. The defendant, if there were such errors as he suggests, ought to have appealed in due time from the judgment taxing him with the costs. As he did not, if there was sufficient excuse for his failure to do so, and he can make a proper case, his remedy is to apply for the writ of certiorari, to bring his ease to this court, to the end that such errors as may be found to exist may be corrected.
¶6 There is no error, and the judgment must be affirmed. It is so ordered. Let this be certified.
¶7 No error. Affirmed.