Williams v. Williams, 71 N.C. 216 (1874)

June 1874 · Supreme Court of North Carolina

71 N.C. 216

CHAS. H. WILLIAMS v. GREEN WILLIAMS.

This Court, upon a petition, to rehear, will modify a judgment entered up at a previous term, when it appears that on account of the careless manner the case was made up, but one of the two defences relied on by the defendant was considered, and that on account thereof substantial justice was not administered.

PetitioN to rehear a decision of this Court in the same case, made at the last term, praying that the judgment then rendered be altered, &c.

The ground upon which the petition is filed, are fully stated in the opinion of Justice Reade.

Jones <& Jones, for petitioner.

Batchelor c& ¿fon, contra.

Reade, J.

This action originally commenced before a Justice. Pleas stat. lim. and counter claim. The Justice gave judgment for plaintiff, and the defendant appealed to the Superior Court, where the same pleas were relied on. But his Honor intimated that plaintiff’s claim was barred by the statute of limitations, and the plaintiff differing, judgment was given for the defendant, and the plaintiff appealed to this Court. The case was carelessly made up for this Court, and stated that the statute of limitations was the only question. This Court overruled his Honor upon that question, and there appearing to be no other, gave judgment here for the plaintiff. The effect of giving judgment here for the plaintiff was to cut the defendant out of his defence of counter claim, &c.

And so a petition was filed at this term to rehear the decision at last term, with the view cf reversing so much of it as gave judgment here for plaintiff, and of having the cause remanded to be proceeded with in the Court below, so as to allow the defendant to have his defences passed upon. The facts stated above appear from the petition to rehear, supported by the written statement of his Honor who tried the cause below.

And now upon rehearing the ease, we affirm so much of the decision at last term as declares that the statute of limitations does not bar the plaintiff, and we reverse so much as gives judgment here for plaintiff; and we remand the cause to be proceeded with according to the course and practice of the Court.

Upon the judgment at last term in this Court an execution issued and the money was collected and returned into office. And upon the filing of the petition to rehear, we directed that the money be retained in office to await the further order of this Court. We now order that the money, except so much as was necessary to pay the cost of that suit, be returned to the defendant in the execution. And that the Clerk notify the defendant of this order and return to him the money.

The cause will be remanded and this opinion certified.

Pee CukiaM. Judgment accordingly.