Long v. Cole, 66 N.C. 381 (1872)

Jan. 1872 · Supreme Court of North Carolina

66 N.C. 381

JOHN A. LONG vs. A. T. COLE and others.

1. When a rule was taken upon the Clerk of the Superior Court, to show cause why he should not pay a certain sum of money decreed to be paid ou-t of funds in his hands, it is no answer to the rule to set forth facts-tending to- show that the original decree was erroneous.

¡3. An error in a decree cannot be corrected or reviewed under a rule to show cause. To effect that purpose regular proceedings must be instituted ^having that end in view.

Rule upon the Clerk of the Superior Court of Richmond,, heard before Buxton, Judge, at Chambers.

The rule was based upon affidavit and is in these words, to-wit:

“Ordered,¿'that the Clerk of this Court pay to A. T. Cole $200, adjudged him, as it is alleged, at the last term of this Court, to be paid out of funds in the hands of the Clerk, or show cause to the contrary before the Judge, at Fayetteville on the 1st day of Jnne next.”

John A. Long appeared and answered the rule as follows :

“A bill in equity was filed by him against the defendants and others for an account of partnership between the defendants and himself. That an answer was filed and a reference made under an order of the Court at Fall Term, 1870. A report was made by the commissioners and a decree entered, confirming the report and declaring that the report should be the judgment of the Court. That the cause was heard by the presiding Judge on Wednesday night of the first week of the term and on the eve of 'adjournment and as he believes in a hurried manner; and that owing to the haste, and hurried manlier in which the same was heard and the decree entered he believes that great injustice was done him. That he was advised that great errors were made by the commissioner in. his report, and that he received evidence which was excepted to and which was illegal.”

PearsoN, C. J.

The answer to the rule is considered, by this 'Court, as irresponsive and insufficient.

The error in the decree, in the original case, if there be any, •cannot be reheard or revised, under a rule to show cause, &e. To effect that purpose, the party must take such proceedings, .•as he may be advised.

The judgment of the Court below, is reversed. This will be •certified’to the end that such further proceedings may bo had, under the rule, as are agreeable to law.

The costs will be paid by the respondent, including the cost ■of the volumes of matter, which was unnecessarily copied and tsent up to this Court.

Per Cubiam. Judgment affirmed.