Parker v. Gilreath, 28 N.C. 221, 6 Ired. 221 (1845)

Dec. 1845 · Supreme Court of North Carolina

28 N.C. 221, 6 Ired. 221

JOHN PARKER vs. PENIL GILREATH.

The writ of recordari is the foundation of all the proceedings in a case of false judgment.

Therefore, where a recordari was returned and heard upon affidavits, the Court had a right to order the canse to be placed on the trial docket and stand there as on a writ of false judgment.

Appeal from the Superior Court of Law of Henderson County, at the Fall Term, 1845, his Honor Judge Caldwell presiding.

The defendant had issued an original attachment against one Cagle, returnable before a Justice of the Peace. The plaintiff had been summoned as a garnishee, and the Justice had rendered a judgment against him on his garnishment. The plaintiff, afterwards, made the affidavit mentioned in the case, and obtained from a Judge a writ of recordari, and removed the proceedings on the said attachment and garnishment junto the Superior Court of Henderson Count}'. In that Court, affidavits were iilod by both parties. And, after argument on them, the Court made the following order : Ordered that this cause be

placed on the trial docket, and stand there as on a writ of false judgment.” From this order, the defendant appealed to this Court.

De Choiseul, for the plaintiff.

Badger, for the defendant.

Daniel, J.

The defendant insists, that the writ of re-cordari was sued out by Parker only to obtain a new trial on his garnishment. And, as the affidavit filed in the cause satisfied the Court, that he was not entitled to a new trial, the recordari should have been dismissed. It was, therefore, error in the Court, to have made the order that it did.

When we, however, look at the affidavit, on which the recordari was granted, we see that Parker prayed a re-cordari and supersedeas; and further, that the Court would “ grant such other and further relief, as may be necessary for him.” The judgment rendered by the Court, in effect, to have the case spread upon the records of the Superior Court, to enable Parker to assign errors on it, if he thought proper to do so, and proceed as in a case of false judgment, was, we think, within the scope of his application for the writ of recordari. This writ is the foundation of all the .proceedings in a case of false judgment 2 Sellons1 Brae. 544, 248. We think that the judgment should be affirmed.

Pee Curiam. Judgment affirmed.