King v. Taylor

• Decision Date: 22 October 1924
• Docket Number: 296.
• Citation: 124 S.E. 751,188 N.C. 450
• Parties: KING ET AL. v. TAYLOR ET AL.
• Court: North Carolina Supreme Court

124 S.E. 751

188 N.C. 450

KING ET AL. v. TAYLOR ET AL.

No. 296.

Supreme Court of North Carolina

October 22, 1924

Proceeding by Sarah E. King and others against Isabella Taylor and others. Judgment by consent, and plaintiffs apply for certiorari. Application denied.

Application for certiorari to obtain a review of a judgment entered in this cause at March term, 1924, of the superior court of Cumberland county. This was a special proceeding before the clerk to establish a dividing line between these parties transferred on issues joined to superior court docket for trial, and wherein it appears that, after the jury was impaneled on the issue, the matters in dispute having been adjusted between the parties, a juror was withdrawn, and judgment by consent entered of record according to the agreement then had. It further appears from the affidavits filed on this application that plaintiffs, having become dissatisfied, and after judgment signed, protested same, and gave notice of an appeal in open court, and asked for the usual entries to be made looking to a perfection of said appeal, which motions were refused by the judge; his honor being of opinion that no appeal would lie from a consent judgment. On the facts appearing of record, plaintiff's application is denied.

A. M Moore, of Fayetteville, for plaintiffs.

Bullard & Stringfield, of Fayetteville, for defendants.

HOKE C.J.

Under article 4, section 8, of our Constitution, power is conferred upon the Supreme Court to issue "any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts," and in furtherance of such power the General Assembly, in C. S. § 630, has provided for the issuance of the writs of certiorari, as heretofore in use, etc. A proper consideration of the authorities apposite is to the effect that as a substitute for appeal the writ does not issue as of right but only in the sound discretion of the appellate court, to review an adverse judgment, where no provision for appeal has been made by law, or the right thereto has been lost or wrongfully refused without default of the applicant, and is allowed only on a reasonable show of merits and that the ends of justice will be thereby promoted. State v. Charles Farmer, 188 N.C. 243, 124 S.E. 562; Mimms v. R R., 183 N.C. 436, 111 S.E. 778; Deslauries v. Souice, 222 Ill. 522, 78 N.E. 799, 113 Am. St. Rep. 432; Rudnick v. Murphy, 213 Mass. 470, 100 N.E. 643, Ann. Cas. 1914A, 538; 5 R. C. L. pp. 253-254.

In the present case, a perusal of the record as now presented will disclose that a judgment below has been entered by consent and stands now in the lower court as the final determination of the rights of the parties of record, and in such case it is very generally held that no appeal lies, the consent being regarded as the waiver of such right. Hartsoe v. R R., 161 N.C. 215, 76...