Rodman v. Austin, 7 N.C. 252, 3 Mur. 252 (1819)

May 1819 · Supreme Court of North Carolina

7 N.C. 252, 3 Mur. 252

William W. Rodman v. Henry Austin.

From Halifax.

tinder the act establishing the Supreme Court, a Judge of that Court cannot award a Writ of Certiorari in vacation. Application for the Writ must be made to the Court.

The statement of a case by the presiding Judge, if not certified or referred to in the transcript, as part of the record, cannot be taken notice of by this Court: and this Court, upon a view of the record, must pronounce the same judgment that the Court below ought to have pronounced.

‘William W. Rodman exhibited to the honorable John Hall, one of the Judges of this Court, in vacation, an affidavit complaining of a certain judgment rendered against him in the Superior Court of Law for Halifax County, at the instance of Henry Austin, and stating the facts upon which his complaint was founded. He prayed for a Writ of Certiorari, to have the case brought up to this Court. His honor doubted whether, under the act of Assembly establishing this Court, a Judge in vacation was authorised to award a Writ of Certiorari: he however, did award it, with a view of having the opinion of the Court upon the question. Upon the return of the Writ, the Court after consideration, were of opinion that applications for Writs of Certiorari must be made to the Court j and thereupon the affidavit of Rodman being read, a motion was made on his behalf, that a Writ of Certiorari be awarded : and it was agreed, in considering this motion, the Court might look into the record which had been certified to this Court by the Clerk of the Superior Court of Law for Halifax, and if they should be of opinion, upon an inspection of the record, that they could not grant to Rodman a new trial, the motion for the Writ should be disallowed. Accompanying the transcript of the record, was a statement of the case, signed by the Judge who tried the cause : but it was not certified as a part of the record, nor referred to in the transcript. It was therefore contended, on behalf of Austin, that it formed no part of the record referrred to this Court, and that this Court, under the act establishing it, could look to nothing but the transcript of the record certified by the Clerk of Halifax Superior Court; and this being examined, it shewed the writ, declaration, proceedings in the case up to final judgment, and a motion for a new trial, which was disallowed. It contained no statement of the case, to enable this Court to decide whether the opinion of the Judgo who tried it, upon the several points stated in Rodman’s affidavit, was correct or not.

HewdersoN, Judge,

delivered the opinion of the Court:

This is a motion for a Certiorari, grounded on the papers returned to the present term between the s ame parties. Those papers are the Plaintiff’s affidavit, the record of a suit in Halifax Superior Court, between Austin Plaintiff, and Rodman Defendant, with a statement of the presiding Judge. From a view of these papers, we are of opinion, that a Certiorari should not issue j for it would be entirely useless. The record does not exhibit those grounds of complaint stated in the affidavit, and we must, upon a view pronounce the same judgment that ivas pronounced in the Court below, whatever might be our opinion if the Judge’s statement formed a part of the case. — But so far from its being entered on the record, it is not even referred to ; and we cannot perceive how we can incorporate it with, or make it a part of the case. It might possibly be made at the time the cause was tried, or it might have been made a month afterwards. It would, therefore, be vain and useless to issue the writ. — The motion must be disallowed.