Emery v. Raleigh & G.R. Co.

• Decision Date: 01 April 1889
• Citation: 10 S.E. 141,102 N.C. 234
• Parties: EMERY et ux. v. RALEIGH & G. R. CO.
• Court: North Carolina Supreme Court

10 S.E. 141

102 N.C. 234

EMERY et ux. v. RALEIGH & G. R. CO.

Supreme Court of North Carolina

April, 1889^[1]

Application to delay the transmission of certificate of decision to the superior court before the close of the term. For statement of case and opinion, see 9 S.E. Rep. 139.

W. H Day, for appellant.

R. O Burton, Jr., for appellees.

MERRIMON J.

At the present term the judgment appealed from in this case was affirmed more than 10 days next before the first Monday in the present month, (April,) and the defendant, by motion asks the court to direct that the certificate of the decision of affirmation shall not be sent to the superior court until after the end of the term, to the end it may, in vacation file its petition to rehear, and apply for an order to restrain the issuing of an execution, as allowed by the statute. Code, § 966.

We think this motion unnecessary, because the defendant can at once file its petition to rehear; and, if a justice of this court shall "indorse thereon that, in his opinion, the case is a proper one to be reheard," as allowed by rule 12, § 2, it will be docketed, and application can then be made for an order to restrain the issuing of execution, or the collection of the same, if issued. The statute (Code, § 968) provided that "the clerk [of this court] shall immediately after the rise of each term thereof, transmit, by some safe hand, or by mail, to the clerks of the superior courts certificates of the decisions of the supreme court in cases sent from said court," etc. This statutory regulation has been amended by the statute (Acts 1887, c. 41) so as to require the clerk of this court to so transmit the decisions thereof "on the first Monday in each month *** which have been on file ten days." This amendment also affects and modified the statute, (Code, § 966,) which prescribes that " a petition to rehear may be filed during the vacation suceeding the term of court at which the judgment was rendered, or within twenty days after the commencement of the succeeding term," etc. The two sections (968 and 966) cited are in pari materia, and must be construed together; as, by the former, the certificate of the decisions of this court were required to be transmitted to the superior court after the term ended. The latter provided that a petition to rehear might be filed at any time in vacation, and the petitioner had opportunity to apply for an order to restrain the...