Ray v. Ray, 34 N.C. 24, 12 Ired. 24 (1851)

June 1851 · Supreme Court of North Carolina

34 N.C. 24, 12 Ired. 24

JOHN RAY vs. MALCOLM RAY.

After an appeal from a County to a Superior Court, tv procedendo will not be ordered to the County Court to give judgment for the costs, because the question was to be determined by the Superior Court in deciding on the appeal.

Where there has been an appeal to the Superior Court and thence to the Supreme Court, a procedendo cannot issue to the County Court to give judgment for costs, because that question is involved in the appeal.

If, after the decision of an appeal, the Superior Court refuses to obey the mandate of the Supreme Court, an appeal cannot again be had, for there is no question to be reviewed, but the party grieved must apply for a mandamus.

Appeal from the Superior Court of Law of Cumberland County, at the Spring Term, 1S51, his Honor Judge Maxly presiding.

The judgment of the Supreme Court in this case, being certified to the Superior Court for Cumberland County, at its Spring Session, 1851,

A judgment and execution for the costs of the said Superior Court against the defendant and his sureties on the appeal bond, (to be taxed by the clerk,) were moved for by the petitioner’s counsel. Which was allowed, ifec., &c.

A judgment and execution were also moved for the costs of the County Court against the defendant and sureties aforesaid, (a memorandum of which is appended to the transcript of the record from said Court): Which the Court declined to give, but offered a writ of procedendo to the County Court, where the cáse might be disposed of, in accordance with the decision of the Supreme Court, and the costs, as the County Court might adjudge.

With this refusal, the petitioner was dissatisfied and prayed an appeal, which was granted.

Petitioner’s counsel then asked for a, writ of procedendo to the County Court, pending the appeal, which was refused and from this refusal the petitioner appealed.

Banks and Mullins, for the plaintiff.

j. G. Shepherd and Strange, for the defendant.

Pearson, J.

There is no error, A judgment for the-costs of the County Court ought not to have been rendered in the Superior Court, because it was repugnant, and inconsistent with the fact, that there' was no right of appeal, and of course no case constituted in that Court.

After the appeal to this Court, upon the question, as to the costs of the County Court, it was clearly right to refuse to grant a procedendo, because, thereby, the County Court would have been called upon to give a judgment, as to the costs of that Court, whereas the appeal assumed, that that judgment ought to have been rendered in the Superior Court, and it was repugnant and inconsistent, pending an appeal, which was taken to try the question, whether the Superior Court ought not to have given the judgment, to move for a procedendo, under which the County Court must have given it.

Another view may be taken of the question. If the Superior Court refuses to obey the mandate of this Court, the ■.counsel is not to appeal, for there is no question to be reviewed, but to apply for a mandamus. In this case, the ■refusal is accounted for and explained by the fact of the appeal, as to the question of costs, pending which, the proce-diendo ought not to have been sent, for thereby the case would have been split ■up and put in two Courts at the same ■time.

Per Curiam. Judgment affirmed.