Hartsfield v. Jones
| Decision Date | 30 June 1857 |
| Citation | 49 N.C. 309,4 Jones 309 |
| Court | North Carolina Supreme Court |
| Parties | JACOB H. HARTSFIELD v. ALLEGOOD JONES, et al. |
Besides the ordinary office of supplying the place of an appeal, under peculiar circumstances, the writs of certiorari and recordari may be used as writs of error and false judgment, respectively; in which cases all that can be discussed is the error alleged to be apparent on the face of the record.
Where an action of assumpsit was brought upon an unliquidated account, a judgment given against the defendant, and an appeal taken to the County Court, upon a default in that Court, it was error to give judgment final for the sum recovered below, without an enquiry of damages.
THIS was a writ of certiorari, issued from the Superior to the County Court of Green County, heard before MANLY, J., at the Fall Term, 1856, of Green Superior Court.
The writ was issued on the petition of the defendant, Allegood Jones, alleging that a judgment had been taken against him before a justice of the peace of Greene County, for a sum certain, from which he had appealed to the County Court of that County, on giving bond, with the other defendants as his sureties; that judgment final was entered at the return term of the appeal, against him and his sureties, for the sum recovered before the justice of the peace, without the ascertainment of damages upon an enquiry before a jury, and that an execution issued from that Court for the sum so adjudged. The petitioner alleges reasons for his not appealing from the County to the Superior Court, and various facts to show that, upon the merits of the case, the judgment was unjust and against law. He prays for a trial de novo, &c. On the return of the writ of certiorari upon the question of a new trial, various matters of facts were shown by the parties severally, upon which it was contended by the defendants that they should have a trial de novo, but that, at any rate, as they had not had the benefit of an enquiry of damages, the judgment of the County Court rendering a final judgment, should be reversed, and an interlocutory judgment be first ordered to enquire of damages.
The Court, upon consideration of the case, refused to give a new trial, and further refused to reverse the judgment of the County Court upon the matter of law, and ordered the certiorari to be dismissed. Whereupon the defendants appealed to the Supreme Court.
No counsel appeared for the plaintiff in this Court.
Rodman, for the defendants .
The writs of recordari and certiorari are used in this State, most commonly, as substitutes for appeals, where the appellants had, without default, lost, or been improperly deprived of their right of appeal; and in such cases they have been allowed a trial de novo upon the merits in the Superior Court. They may be used also, the former, as a writ of false judgment, and the latter, as a writ of error; in which case, all that can be discussed and decided in the Superior Court are the form and sufficiency of the proceedings in the inferior tribunals, as they appear upon the face of them. Parker v. Gilreath, 6 Ire. Rep. 221; Webb v. Durham, 7 Ire. Rep. 130; Brooks v. Morgan, 5 Ire. Rep. 481; Commissioners of Raleigh v. Kane, 2 Jones' Rep. 288. The writ of recordari lies to an inferior tribunal, whose proceedings are not recorded, and it is necessarily used as a writ of false judgment, because no writ of error can be brought upon the order, sentence or judgment, of such tribunals. 2 Sellon's Practice, 544.
The writ of certiorari lies to a court of record, and may be used for the same purpose as a writ of error in the regular form. It is true that, in the case of Brooks v. Morgan, above referred to, it is said by the Court that this writ has been used by necessity for the correction of errors in law, in those cases where the right of appeal has not been given. We cannot perceive any sufficient reason why it may not be...
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Belk's Dept. Store v. Guilford County
...having a favorable connotation: Dougan v. Arnold, 15 N.C. 99; Petty v. Jones, 23 N.C. 408; Lunceford v. McPherson, 48 N.C. 174; Hartsfield v. Jones, 49 N.C. 309; Walls v. Strickland, 174 N.C. 298, 93 S.E. It can readily be seen that where certiorari is used as a substitute for an appeal exp......
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...seq. In considering an application for this writ only such errors or defects as appear on the face of the record can be considered. Hartsfield v. Jones, supra; March Thomas, 63 N.C. 249; Short v. Sparrow, 96 N.C. 348, 2 S.E. 233; and the application must show merit. Taylor v. Johnson, supra......
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...of false judgment; and that it may be so used, in this State, cannot be doubted. See Parker v. Gilreath, 6 Ire. Rep. 221, and Hartsfield v. Jones, (49 N.C. 309). Such being the nature of the cause, the affidavits taken in it, were unnecessary, as they could not properly be considered in the......
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