Den ex dem. Ballard v. Carr, 15 N.C. 575, 4 Dev. 575 (1834)

June 1834 · Supreme Court of North Carolina

15 N.C. 575, 4 Dev. 575

Den ex dem. Charles H. Ballard, v. Tully Carr.

Where a cause was removed, and the record certified on the removal was erroneously copied, upon advantage being taken of that error in the Supreme Court, the remedy is to move to stay proceedings, until the record of the Court where the trial was had is corrected, and then to bring up that record by certiorari.

Iredell, for the defendant upon an affidavit setting forth that this cause had been removed from Gates to Hertford by an order which was entered on the record of the cause, while pending in that court, but which had not been transcribed into the copy certified to Hertford; and that the plaintiff, who was the appellant, had assigned that omission as error, moved for a certiorari to Gates, in order to found a motion for an amendment, in this court, upon the transcript returned to that writ.

No Counsel appeared for the plaintiff.

Ruffin, Chief-Justice.

This cause was tried in Hertford, to which it had been removed from Gates, and has now come into this Court by appeal.

There is a defect in the transcript sent here, in not setting out an order, made in the cause, while it was in Gates Court, which may be to the prejudice of the ap-pellee, and it is admitted that the same defect exists in the transcript filed in Hertford, from which that in this Court lias been correctly made. The appellee now moves on affidavit,for a certiorari to the Clerk of Gates Superior Court, to obtain a true transcript from that Court, setting out the omitted order, so that the record here may be amended by if.

Not doubting that this Court has the power of making the amendment here, and ought to do it from the record in Gates, rather than there should be a failure of justice, yet it might be a question, whether it should be by certiorari to that Court for a copy to amend by, and ought not to be from the original, which would be troublesome and expensive to the parties. The amendment may be more conveniently made in the transcript in Hertford, from the originals carried into that Court by the Clerk of Gates, and as the judgment we are here reviewing is that of the Court oF Hertford, there is a manifest propriety, that the records in that court and in this, should be consistent. As the more convenient practice therefore, the court adopts it as a rule, to stay proceeding upon the appeal here, until the party can have the amendment made in Hertford, and bring up a new transcript from that court, upon certiorari, rather than pursue the course requested by the appellee. The motion for the certiorari, at present, is therefore refused ; hut the court will not give judgment in the appeal at this term, but will give the appellee an opportunity of bringing in a transcript of the record as amended.— Besides the greater convenience of this course, as it appears to us, it is sanctioned by the course in England, upon writs of error brought in the Exchequer Chamber, which proceeds upon a transcript only from the King’s Bench, in which the original record remains, and in that respect, differs from the case of a writ of error from the King’s Bench, to the Common Pleas. (Tidd’s Practice. 771.