The writ of Certiorari is the proper remedy for the defendant in this case, and we concur in the opinion expressed by the J udge upon the hearing of this cause in the court below, that the cause should be placed on the trial docket.
Fryer v. Blackmore's Admin'r, 5 N.C. 94, 1 Mur. 94 (1805)
Dec. 1805
·
Supreme Court of North Carolina
5 N.C. 94, 1 Mur. 94
Fryer vs. Blackmore’s Admin’r.
—From Wilmington.
adm’r of!, ed asTgai--"case pend a ing in the court?nt3He and^anissuc mfouncu-& gainst him, *95he prays an appeal, but does not give bond for the appeal until the next Term, in consequence of which the appeal is dismissed-^* a writ of certiorari will lie to remove the cause to the Superior Court.
*94The defendant was summoned as a garnishee, in a cause pending in the County Court,; he was examined and an issue was made up and tried between him and {he plaintiff, and the jury found in favour of the plaintiff at April term 1804). T^e defendant prayed for, an appeal to the Superior Court, but did not execute an appeal bond until July term following. The record was transmitted to the Superior Court and aPPe£d was there dismissed, because the appeal bond had 11 been executed at the proper time: at the same term in which the appeal was dismissed, the defendant obtained a *95writ of certiorari to have the record certified to the Superior Court, and upon the return of this writ, his counsel moved to have the cause placed On the trial docket, which being objected to, the cause was sent to this court upon the question, whether the writ of certiorari was the proper remedy in this case.