Cherry v. Slade

• Decision Date: 30 June 1823
• Court: North Carolina Supreme Court
• Parties: CHERRY v. SLADE.

9 N.C. 400

CHERRY

v.SLADE.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1823

1. When a record conies up to this Court, and with it a statement by the clerk that the appeal bond sent up is taken in a penalty less than that directed by the presiding judge, and it appears from affidavits that the penalty inserted in the bond was so inserted from a misunderstanding on the part of the clerk, the Court will consider the bond sent up as an appeal bond, if it appear that the penalty is sufficiently large.

2. A certiorari is granted by this Court, on facts uncontroverted. apparent on the records, or papers before the Court; but a rule is proper when the application is made on facts not so apparent. But in all cases when the certiorari is returned the facts may be controverted.

3. In ordinary cases, fixing the time of notice to take depositions belongs to the judge who orders commissions; but where it appeared from the record that an order was made granting commissions, but fixing no time of notice, it was Held, that if the parties disagreed on this point the judge who presided when the depositions were offered should determine on the sufficiency of the notice.

4. In an action for slander, in charging the defendant with having sworn falsely as to the residence of an individual, declarations made by that individual as to his residence, not in the presence of the plaintiff, are inadmissible as evidence against him; but on a mere abstract question as to the residence of an individual, that fact depends so much on intent that declarations made by the individual, accompanying and explanatory of his bodily presence, are admissible as part of the res gestœ.

ACTION for slander tried before Badger, J., at Spring Term, 1823, of MARTIN.

Gaston, in this case, suggested a diminution of the record because it did not show that an appeal was granted until after the adjournment of the court below, and moved for a certiorari.

The record stated that the issues in the cause were submitted to a jury, who found a verdict for the defendant; that a motion was made for a new trial; that the motion was overruled, and judgment rendered. These facts were officially certified by the clerk under seal, and then followed a statement by the clerk that an appeal was prayed and granted to this Court, and an appeal bond in the penalty of $1,000 was filed, but, owing to its escaping the recollection ofthe clerk, no entry of the appeal was made on the record. The clerk also stated that the appeal bond was filled up with a penalty less by $500 than that which the judge had directed, which arose from the clerk's not having heard what amount the judge directed as the penalty of the bond, and this error was not discovered by the clerk until after the adjournment of the court.

A statement of the case made for this Court by the presiding judge below also accompanied the record and concluded with the remark that an appeal to this Court was prayed by the plaintiff.

Gaston then read the affidavit of the clerk below, containing the same facts set forth in his statement, and also the affidavit of the clerk of the county court of Martin, confirming that statement, and adding that the clerk was absent from the court room, preparing a bond when the judge directed the bond to be in the penalty of $1,500, instead of $1,000, the sum first agreed on. The affidavit of the defendant himself was then read, and from its contents it appeared that the defendant had signed the bond tendered him by the clerk, as had also his securities, presuming that all was properly done; that the defendant and his securities were willing to file a bond to any amount, and that $1,000 was far more than sufficient to satisfy all the costs of the suit; that as soon as he understood there was some difficulty as to the penalty of the bond he executed another for $1,500, with ample security, and now stood ready to give any further security this Court might require.

Hogg opposed the issuing of a certiorari and contended that the utmost that could be done under these circumstances was to grant a rule; that as to the affidavits, that of Cherry, the defendant, did not show that any securities were ever tendered to the court, nordid it explain the cause of the omission; it did not show that either Cherry or his counsel was mistaken as to the amount of the bond

directed by the judge, and the other affidavits merely showed that the clerk was mistaken.

But the Court directed a certiorari.

HENDERSON, J., remarking that, to settle the point of practice, it might be well to observe that a certiorari is granted on facts uncontroverted, apparent on the record or papers before the Court, but a rule is proper where the application is made on facts not so apparent. But as in all cases we permit the facts to be controverted when the certiorari is returned, it is the same thing as granting a rule only.

On the return of the certiorari it appeared to be an action for slander, in charging the plaintiff with perjury, that had been tried...