Ex parte Barton, 70 N.C. 134 (1874)

Jan. 1874 · Supreme Court of North Carolina

70 N.C. 134

WILLIAM A. BARTON, Ex parte.

In a petion for a certiorari, as a writ of false judgment, it must be affirmed or shown that a judgment was rendered; if the certiorari is applied for as a substitute for ran appeal, the party must show that he has been improperly deprived of his appeal, or has lost it by accident.

(Oases of Dougan v. Arnold,, 4 Dev. 99; McMillan v. Smith, 3 Oar. Law Repos. 75; OolUns v„ Mall,, 3 Dev. 324,. cited and approved.)

PetitioN for a writ- of Oertiorari, heard by His Honor, Judge Toitrgee, at Chambers, the 14th day of December, 1873.

It is stated in the- petition, that in December, 1873, one Chesley L. Barton, on behalf of Thomas Barton, filed in the-Probate Court of Peeson county, a petition, in formagoavgperis^ praying for a jury, who should try and say whether the said Thomas was or was not non compos mentis, and capable of managing his own affairs; That the jury was summoned as prayed for, and met at the Court house on the 20th of April, 1872, and after hearing evidence,for their verdict found, “that the said Thomas Barton was incapable of managing his own-business in a j udicious and proper manner.” That no order was issued, nor any guardian appointed for the said Thomas,, according to the verdict.

Further it is stated in the petition, that the plaintiff, or petitioner in this case, after the verdict of the jury, applied to the Judge of Probate to re-open the case, upon the ground, that all the evidence in relation to the state of Thomas Barton’s mind was not produced before the jury; that he, the present, petitioner, did not make himself a party to the proceedings, but only acted asa friend of the said Thomas Barton, and with the consent of the petitioner in the original cause, the matter was rehead before another jury in May, 1873, who, for their verdict, found, “ that no guardian is necessary,” thus reversing the decision of the first jury; and that the Probate Judge has issued an execution against the petitioner in this case, for ah _mt $60, costs.

For the foregoing reasons, it is prayed that a writ of cer-tiorari issue to the Judge of Probate, commanding to certify the proceedings in the original petition of Ohesley L. Barton, to the Superior Court of Person county, and cause the case to be docketed; and in the meantime, that a special injunction issue to the sheriff, commanding him to refrain from any further proceedings under the execution for costs.

Upon the hearing, his Honor ordered the petition to be dismissed, and the petitioner to pay costs, from which order the petitioner appealed.

Jones & Jones, for petitioner.

When an appeal is not given by law, a certiorari is the proper remedy. Reardon v. Guy, 2 Hay. 433; Davis v. Marshall, 2 Hawks, 59. The petitioner in this case could not appeal, because he was not a partythe appeal being denied, his only remedy was by a writ of certiorari.

There is merit in the petition, the petitioner has inherent rights, and the writ should have been granted, so that he could be heard. SchencJds case, 65 N. C. Rep., 353.

The first petition was brought in forma pa'ivperis, and if this petitioner was a party, then no costs could have been taxed against him. He was not a party, and of course, under no circumstances, could an execution for costs issue a'gainst him.

Bynum, J.

The writ of certiora/ri lies to correct errors of law, as a writ of false j udgment, or as a substitute for an appeal, and issuses when the party has been improperly deprived of his appeal, as a matter of course, and where he has lost his appeal by accident; it issues upon affidavit, and showing prima fade, a case of merits. Dougan v. Arnold, 4 Dev., 99.

In our case, a certiorari cannot issue as a writ of false judgment, for it is not affirmed or shown in the petitien, that any judgment at all, was rendered against the petitioner. A judgment is the foundation of the writ, in this aspect of the case.

If, however, the writ is applied for as a substitute for an appeal, to entitle him to it, the party must show that he has been improperly deprived of his appeal or has lost it by accident. The case does not show that an appeal was prayed even, much less that he was deprived of it by accident or otherwise; nor does the case show any merits which entitled him to relief in the Superior Court. McMillan v. Smith, 2 Car. L. R. 75; Collins v. Nall, 3 Dev. 224.

The case shows that an inquest of lunacy had been held upon one Thomas Barton at the instance of C. L. Barton, and that the Judge of Probate, of Person county, before whom it was held, had issued an execution against the plaintiff here, for the costs.

He has mistaken his remedy, whieh was by a motion in the cause, in the court which had jurisdiction of the proceedings in lunacy, and which had issued the execution.

There is no error.

Pee Cukiam. Judgment affirmed.