Petty v. Jones, 23 N.C. 408, 1 Ired. 408 (1841)

June 1841 · Supreme Court of North Carolina

23 N.C. 408, 1 Ired. 408

BENJAMIN F. PETTY, County Trustee, &c. vs. EDMUND JONES & al.

A certiorari will not be granted, where a writ of error will lie. •

Where certain defendants, securities to a Sheriff’s bond, had obtained a certiorari to bring up a case from the County Court, where judgment had been rendered against them, and upon the return of the certiorari, the Superior Court directed the case to be placed on the trial docket, and that a new trial be granted, and when the case came on, upon the motion of the defendants, ordered the suit to be dismissed, because the defendants had not been duly served with notice as directed by law ; Held, that this judgment was erroneous, and that the parties must proceed to trial upon the merits of the case.

The case of Guión v. Shepard, Conf. Rep. 36, cited and approved.

' This was an appeal from the judgment of the Superior Court of Wilkes County, rendered at the Spring Term, 1841, his Honor Judge Manet, presiding. The defendants had obtained a certiorari upon an affidavit, stating that they were the securities of one John J. Bryan, as Sheriff of Wilkes county ; that one Benjamin F, Petty, (the present plaintiff) the County Trustee, had caused a notice to be served on the said John J. Bryan alone, returnable to August Term, 1839, of Wilkes County Court, to shew cause why judgment should not be rendered against him and his sureties, for the amount of the taxes then in his hands ; that judgment was rendered accordingly, at the said August Term, against the said John J. Bryan and these defendants, for the sum of fourteen hundred and six dollars, and costs of suit; that the defendants had no notice nor knowledge of the making of any such motion, and no means of defending the same; and that the said John J. Bryan was in embarrassed circumstances, and the defendants were likely to suffer. And the defendants, upon this affidavit, prayed for a supersedeas to the execution issued on the said judgment, and a certiorari, and that the said judgment might be reversed, and they have an opportunity of pleading to the said cause. The certiorari being returned to the Superior Court of Wilkes, at April Term, 1840, the following order was then made: “ It is ordered by the Court, that this case be transferred from the appearance to the trial docket, and that the parties be reversed, and new trial granted to Edmund Jones, &c.(the present defendants).” The cause was continued until April Term, 1841, when the following order was made : “ It appearing to the Court, that the defendants were not served with notice, as by law required, ordered that this proceeding be dismissed.” From this judgment, the plaintiff appealed to the Supreme Court.

No Counsel for the plaintiff!

D. F. Caldwell for the defendant.

Gaston, J.

The writ of certiorari from the Superior to the County Court, as it has been moulded by judicial usages and legislative enactments, to suit the convenience of our citizens, issues ordinarily after a judgment, to correct some alleged injustice, which the party complaining has not had an opportunity of causing to be corrected by the ordinary remedy of appeal. When the record is brought up by this writ, the first enquiry in the Superior Court is, whether there shall be a re-examination of the matter, wherein the alleged injustice occurred. If this be decided in the negative, the certiorari is dismissed, and a procedendo awarded to the County Court to execute its judgment; but if it be decided in the affirmative, then the proceeding by certiorari becomes, as to the matter complained of, that for which it is substituted, an appeal, atrial de novo both as to law and fact is awarded in the Superior Court, and the judgment to be re-examined is, by such award, annulled. This is the light in which the certiorari was in this case originally regarded, both by the petitioners and the Court to which it was returned. The application for the writ was made in behalf of such only of the defendants in the judgment, as felt themselves thereby aggrieved, and their prayer was that the judgment should be reversed, “ and they have an opportunity of pleading to the said cause.” And when, in obedience to the writ, the record was brought up to the Court, it was ordered that “ a new trial be had, and that in the issue, the defendant to the certiorari should be the party plaintiff, and the petitioners the defendants.” But at the subsequent Term, instead ofproceeding to the trial of the merits involved in the issue, the petitioners prayed that the judgment below should be reversed for error, no further trial be had, and the parties dismissed from the Court.

We think that the Court erred in assenting to this prayer. The certiorari xvas not in the nature of a writ of error. It can operate as such, only xvhere a writ of error does not lie, and we see no reason to doubt but that a writ of error might have been sued out to reverse the judgment in this case.— A general jurisdiction is expressly conferred by statute on the Superior Court to grant writs of error, for correcting all errors of the County Court, and this grant x>f jurisdiction is limited only by the necessary and implied exception of those c3s.es, wherein the errors of the inferior Court cannot be cor-* rected by such a writ. The judgment here complained of, was not one of those cases. It was rendered in a civil suit, inter partes, on a matter of right, to be judged of by the law common to both Courts, and where the proceedings were to be in all respects according to the usages of the common law, except so far as the public statutes had interferred for expediting the process, pleadings and trial therein. It has not heretofore been questioned, we believe, that in such a case, any error to be found in the judgment of the County Court might be revised by writ of error. See Guion v. Shepard, Conf. Rep. 26. Besides, in a writ of error, where there is a common judgment, all against whom it is rendered must join, for an entire judgment cannot be reversed in part.

The final Judgment in the Court below must be reversed, and the causeremitted to that Court, in order that a trial be had between the original plaintiff and the petitioners, as to their alleged indebtedness as the sureties of John J. Bryan.

Pun Curiam, Judgment accordingly.