Blackwell v. Wright, 74 N.C. 733 (1876)

Jan. 1876 · Supreme Court of North Carolina

74 N.C. 733

WILLIAM P. BLACKWELL v. WESLEY A. WRIGHT.

It is no good ground for the re-opening and re-hearing of a case decided at the last term of this court, that the defendant, in the opinion and judgment of the court, was assumed to be a citizen of North Carolina,whereas, in fact, he was a citizen and resident of Virginia, when the place of his residence is immaterial, having no bearing on the point decided, and the court, in its opinion and judgment, was not affected by that consideration in the least.

PetitioN to rehear the case between the same parties, decided at the last term, and reported in 73 N. C. Rep., 310 ; in which report a full statement of all the facts of the case are set out.

The grounds relied upon for a re-hearing are stated in the opinion of the court.

Merrimon, Fuller cfe Ashe, for petitioner.

J. W. Graham and Jones cfc Jones, contra.

Bynum J.

This case was decided at the last term of the court, and is reported in 73 N. C. Rep. 310, and it is again before us on a petition to re-hear for alleged error in the former decision. The alleged error consists in this, that the court in the opinion and judgment then rendered, assumed that the defendant, Wright, was a citizen of North Carolina, and doing business in the town of Durham, when in fact he w’as not.

It is true that the court did so assume, and the record, to which we are confined, does not show otherwise. But it is immaterial how that fact may be, as the opinion of the court was not affected by that consideration. The decision rests upon the broad ground that the trade mark of the plaintiff, was not infringed upon by that of the defendant, owing to their dissimilarity. It was therefore not material whether the defendant was located and doing business at Durham or at Richmond.

There is no error.

Pee Curiam:. Judgment re-affirmed and petition , dismissed.