Williams v. Williams

• Citation: 71 N.C. 427
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1874
• Parties: C. H. WILLIAMS v. ALEX'R, and GREEN WILLIAMS, Adm'rs., .

71 N.C. 427

C. H. WILLIAMS

v.ALEX'R, and GREEN WILLIAMS, Adm'rs., .

Supreme Court of North Carolina.

June Term, 1874.

Section 481, Code of Civil Procedure, is repealed by sec. 134, chap. 45, Bat, Revisal, which latter is the only and exclusive remedy to recover a distributive share of an estate.

A writ of Certiorari can only issue to the Court wherein the cause is pending. Therefore, when the cause has been carried by appeal to the Supreme Court, the petition for the writ to the Court below should be dismissed.

( Williams v. Williams, 70 N. C. Rep. 665; Barton ex parte, Ibid, 135; cited and approved.)

This was a PETITION for a certiorai, made to his Honor, Judge Tourgee, 5th March, 1874, at Chambers, upon the hearing of which the writ together with a supersedeas was issued returnable and heard at Spring Term, 1874, of PERSON Superior Court.

The points raised and the facts relating thereto, are fully set out in the opinion of the Court.

Upon the hearing, his Honor granted the writ and the plaintiff appealed.

Jones & Jones, for appellant .

J. W. Graham, contra .

BYNUM, J.

This case was here at the last term, and is reported in 70 N. C. Rep., 665. A brief history of it is this: Under Bat. Rev., chap. 45, sec 134, a petition was filed in the Probate Court of Person county, by the plaintt??ff, as one of the next of kin of Haywood Williams, deceased, against the defendants, his administrators, for an account of the estate and the payment of his distributive share thereof. The defendants submitted to an account, and such proceedings were had in the case, that on the 17th September, 1872, a final judgment was rendered thereon against the defendants. On the 5th November, 1872, the defendants filed in the same Court a petition to re-open and re-hear the case, and let in more testimony. That petition was answered by the plaintiff, and upon a hearing of the parties, the Judge of Probate refused to re-open, and dismissed the petition; from which judgment the defendants appealed to the Judge of the district, who after fully considering the case, affirmed the decision of the Probate Court on the 8th February, 1873, and dismissed the appeal. From this judgment, the defendants appealed to the Supreme Court, and at the last term thereof, 70 N. C. Rep., 665, the judgment below was affirmed and the petition dismissed.

On the 28th February, 1873, and pending their appeal to the Supreme Court, the defendants filed this petition to the Judge of the district for a writ of certiorari, to be directed to the Judge of Probate, commanding him to certify to the Superior Court a full transcript of the record and proceedings in the cause, had in his Court. And in this petition some new facts appear, which were not disclosed in the record of the case here at the last term, to wit; that an appeal was prayed and granted by the Judge of Probate from his rulings on the exceptions filed and from his final judgment, rendered on the 17th of September, 1872. That appeals were taken by both parties, and when they came on to be heard by the Judge of the district, on the 3rd Monday in October, 1872, his Honor refused to entertain the appeals, because they had not been perfected as the law prescribes, and no case was stated, although the report, exceptions and judgment, were before him. His Honor, at the same time, “proceeded to state certain rules of practice for the Court of Probate, and among others that a petition to re-open and re-hear causes might be preferred in that Court.” When the case was thus remitted to the Court of Probate, and when the petition to re-open and re-hear, was afterwards made in that Court, it was not alleged to be in consequence of the suggestion of the Judge, nor does the application for the certiorari, allege that the petitioners were misled by his Honor, nor does it allege any reason why the appeal from the judgment of the Court of Probate, was not perfected and prosecuted, when the case was remitted to the Court, by the refusal of his Honor to hear it, because it was not properly before him. But the case does disclose facts from which the legal inference follows, that the appeal was abandoned. For instead of appealing from the refusal of his Honor to hear the case, and remitting it back to the Court of Probate, and instead of attempting to perfect the appeal when the case came back, the defendants adopted another remedy which was open to them, and which they believed would afford them all the relief and more than could be attained by prosecuting the appeal. Their petition to re-open, therefore, set forth every material fact afterwards set forth in the petition for a certiorari. The whole case, whether of law or fact, as it now appears in this case, was presented in the proceedings on the petition to rehear, was fully debated by counsel, carefully reviewed by the Judge of Probate, and from his judgment thereon, on appeal, was again passed upon by the district Judge, and finally by this Court, and the Judgment of the Court of Probate, was affirmed. In the argument Mr Graham took the ground that the plaintiff was proceeding under section 481, C. C. P., and that therefore the Court of Probate could only audit and record the account, and that no final judgment for the distributive share could be rendered. In this he is in error. Section 481, C. C. P., is repealed by Bat. Rev.,...