Boing v. Raleigh & Gaston R.R. Co.

• Decision Date: 28 February 1883
• Citation: 88 N.C. 62
• Court: North Carolina Supreme Court
• Parties: W. T. BOING v. RALEIGH & GASTON RAILROAD COMPANY.

88 N.C. 62

W. T. BOING

v.RALEIGH & GASTON RAILROAD COMPANY.

Supreme Court of North Carolina.

February Term, 1883.

MOTION to dismiss a recordari heard at July Special Term, 1882, of VANCE Superior Court, before Graves, J.

On the 12th day of December, 1881, the defendant moved for, and obtained from the superior court of Vance county, a writ of recordari to bring up a certain proceeding theretofore had before a justice of the peace and two freeholders of the county, under the act providing a remedy for the owner of stock killed by a railroad.

In support of the motion, the defendant filed an affidavit of one of its agents, in which it was set forth that the trial before the justice and freeholders occurred on the 11th day of September, 1880, when judgment was rendered for plaintiff in the sum of $40.00, and for costs; that then and there, in open court, an appeal was prayed for the defendant and allowed by the justice, and under an arrangement between counsel, a short time was given to the defendant to give an appeal bond; that the bond was given and all the costs were paid, including the fees to the justice for the appeal, who promised to send up the case to the next term of the superior court, to-wit, the fall term, 1880; that defendant supposed the same had been done, and knew nothing to the contrary until a very short time before making this motion, when it was ascertained that the papers had never been sent up, or the cause docketed in the court; that acting under the belief that the case was in court, the defendant had retained counsel to attend to it, and supposed that he had done so, and would certainly see that the appeal was properly sent up and docketed; and that the defendant has a valid defence to the action.

W. H. Young, of counsel for defendant, also filed his affidavit, stating that at spring term, 1881, acting under the belief that the papers in the case had been sent up by the justice, and that the cause was then in court, he caused witnesses to be summoned and in attendance at that time, but the case was not called.

The plaintiff filed his affidavit in answer to the motion, without however materially varying the facts, and he insisted that as the defendant company had allowed three full terms of the superior court to pass without moving in the matter, it had lost the right to be relieved by its own laches.

At July special term, 1882, the plaintiff moved to dismiss the recordari, when the defendant asked the court to find the facts to be as set out in the affidavits of its agent and attorney, which the court declined to do, but gave judgment dismissing the...