Caldwell v. Beatty, 68 N.C. 399 (1873)

Jan. 1873 · Supreme Court of North Carolina

68 N.C. 399

S. P. CALDWELL v. RUFUS J. BEATTY.

Where there is a petition for writs of reeordari and supersedeas, and the prayer is refused by a Judge at Chambers, and appeal to this Court, and procedendo ordered to the end the prayer of petitioner be granted, and the proceeding was ex parte, and defendant had no notice: Held, to be error to enter up judgment against the defendant for costs of Supreme Court. Should the petitioner finally succeed in defeating the recovery of the plaintiff in the original actions, then he will be entitled to have his costs in this Court taxed against said plaintiff.

The opinion of the Court contains a full statement of the facts of the case.

Schenclc, for defendant.

No Counsel for plaintiff.

Boyden, J.

This was an application on the part of Caldwell, by way of petition for writs of reeordari and supersedeas; the prayer of the petition was refused by his Honor, Judge Logan, and the defendant appealed to the Supreme Court, and this Court at the last term decided that his Honor was in error in refusing the prayer of the petitioner; and directed a proveciendo to issue to Ms Honor, to the end the prayer of the petitioner be granted.

This proceeding was ex parte and of which Beatty, the plaintiff in. the original actions, had no notice. Such notice was only to be given after the prayer of the petitioner was granted and the writs issued.

It was therefore error in the Clerk to enter up judgment for costs against Beatty; the judgment should have been against Caldwell, the petitioner, for the costs of the Supreme Court. The Clerk will therefore correct the record and enter judgment against the petitioner for the costs in this Court. Should the petitioner finally succeed in defeating the recovery of the plaintiff, Beatty, then he will be entitled to have his costs in this Court taxed against Beatty.

Per Curiam.

Judgment accordingly.