Hunter v. Atl. Coast Line Ry. Co

• Decision Date: 19 March 1913
• Citation: 161 N.C. 503,77 S.E. 678
• Parties: HUNTER. v. ATLANTIC COAST LINE RY. CO.
• Court: North Carolina Supreme Court

77 S.E. 678

161 N.C. 503

HUNTER.

v.ATLANTIC COAST LINE RY. CO.

Supreme Court of North Carolina.

March 19, 1913.

Justices of the Peace (§ 194^*)—Writ of Recordari—Prerequisites to Issuance. It is error to issue a writ of recordari to justice's court, requiring him to send up the cause for trial de novo after entry of default judgment against defendant, and loss of right to appeal, where there is no showing of a meritorious defense.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 774, 775; Dec. Dig § 194.*]

Appeal from Superior Court, Lenoir County; Frank Carter, Judge.

Action by W. F. Hunter against the Atlantic Coast Line Railway Company. From ajudgment granting a writ of recordari, plaintiff appeals. Reversed.

Cause heard on petition for recordari to justice court, before his honor, Prank Carter, judge, at January term, 1913, of the superior court of Lenoir county. From the affidavit of defendant's counsel, the only evidence offered, it appeared that on June 4, 1912, at and in Lenoir county, plaintiff recovered judgment against defendant, the Atlantic Coast Line, for wrongful failure to ship certain household goods of plaintiff from Fargo, Ga., to Enfield, N. C, the same being, in breach of contract of carriage, sent to Elflaud, N. C.; that defendant company had employed a law firm to appear and look after the ease, but the member of the firm who had been spoken to about the case, and who usually looked after cases of this character, had been compelled to leave and be absent from the state on account of sickness, and for that reason failed to appear at the trial, and, not having mentioned the case to his associate, the defendant was unrepresented at the trial and so lost its right to appeal; that the failure of the partner in charge of the case to attend the trial or inform his associate was due solely to his sickness; that, at the following term of superior court, this application was made on notice duly given, and, having been continued from time to time till January term aforesaid, the court entered judgment granting the writ of recordari and requiring the justice to send up the papers, and that the cause be docketed for trial de novo. Thereupon plaintiff excepted and appealed.

T. C. Wooten, G. V. Cowper, and Y. T. Ormond, all of Kinston, for appellant.

Rouse & Land, of Kinston, for appellee.

HOKE, J. While it is held with us that, in proceedings of this nature, and in merely formal matters, such as the giving of notice, etc., a reviewing court is allowed a very wide discretion (State v. Johnson, 109 N. C. 852, 13 S. E. 843; Railroad v. Richardson, 82 N. C. 343), our decisions also hold that an order granting a writ of recordari to a justice's court, and directing that a cause be set down for trial de novo, rests in the sound discretion of the court and is one from which an appeal...