Lassiter v. Harper
| Decision Date | 31 December 1849 |
| Citation | 32 N.C. 392,10 Ired. 392 |
| Court | North Carolina Supreme Court |
| Parties | MARTHA A. LASSITER v. CHARLES H. HARPER. |
Where a judgment was obtained before a justice of the peace against a husband and wife, on a bond executed by them during their coverture, and an execution levied on the land of the wife, and returned to the County Court, where, after the death of the husband, an order was made for the sale of the land, Held, that the wife was entitled to a certiorari to the Superior Court.
The case of Dougan v. Arnold, 4 Dev. 99, cited and approved.
Appeal from the Superior Court of Law of Greene County, at the Spring Term 1849, his Honor Judge BATTLE presiding.
This is an appeal from an order dismissing a writ of certiorari. The facts are these. The plaintiff Martha A. Lassiter was the wife of one Uzzell Lassiter, and, during their coverture, they executed their joint bond to Harper for $94 50, on which a warrant was brought and judgment rendered against both in March 1847. Afterwards the husband died and Harper sued out execution against the husband and wife, which the constable levied on the land of Mrs. Lassiter and returned the levy to the County Court, on the 2nd Monday of August 1847, when, without taking any notice of the husband's death, the Justice's judgment was affirmed, and a venditioni exponas was awarded, and, in October following, the plaintiff obtained this writ. Her affidavit stated her coverture, at the time the bond was given and the judgment rendered, and that it was rendered in her absence and without her knowledge. The counter affidavits of the creditors and the constable were put in, and stated that Uzzell Lassiter was insolvent, and that the debt was contracted for necessaries for his family, and that the articles were sold on the credit of the feme and her land; and that she made no objection to the judgment being given, on account of her coverture, nor prayed an appeal, but she acknowledged the justice of the debt, and promised, at the time and also after the death of her husband, to pay or secure it by a new bond; and that she so continued to promise, until she was advised by counsel at August Court, that she might avoid the payment by reason of her coverture, when she refused to give her bond; but that she did not, even then, oppose the affirmance of the judgment and order of sale. In reply the plaintiff offered the affidavit of the magistrate, that Mrs. Lassiter was not present when the judgment was given, though it purports to have been rendered by confession; and her own affidavit, that the debt was chiefly for spirituous liquors sold to her husband, who was very intemperate.
His Honor was of opinion, that the case was a proper one for a writ of error coram nobis, and not for a certiorari; and he dismissed the latter writ.
No counsel for the plaintiff .
Biggs, for the defendant .
There is no doubt, that...
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Dantzic v. State
...by guardian as in Williams v. Edwards, supra; or (3) coverture, where the common law disability still existed, as in Lassiter v. Harper, 32 N.C. 392 (1849), and in Roughton v. Brown, In civil cases, the writ of error became obsolete upon adoption in North Carolina of the Code of Civil Proce......
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In Re Taylor.
...G.S. § 4-1; In re Taylor, 229 N.C. 297, 49 S.E. 2d 749; Roughton v. Brown, 53 N.C. 393; Williams v. Edwards, 34 N.C. 118; Lassiter v. Harper, 32 N.C. 392; Tyler v. Morris, 20 N.C. 625, 34 Am.Dec. 395. See Massie v. Hainey, 165 N.C. 174, 81 S.E. 135; Roberts v. Pratt, 152 N.C. 731, 68 S.E. 2......
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In re Taylor
... ... G.S. s 4-1; In re Taylor, 229 N.C. 297, 49 ... S.E.2d 749; Roughton v. Brown, 53 N.C. 393; ... Williams v. Edwards, 34 N.C. 118; Lassiter v ... Harper, 32 N.C. 392; Tyler v. Morris, 20 N.C ... 625, 34 Am.Dec. 395. See Massie v. Hainey, 165 N.C ... 174, 81 S.E. 135; Roberts v ... ...
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In Re Taylor., 434.
...Law, § 1606], p. 143 et seq., and is a part of our procedure in North Carolina. G.S. § 4-1; Roughton v. Brown, 53 N.C. 393; Las-siter v. Harper, 32 N.C. 392, and Tyler v. Morris, 20 N.C. 625, . The Writ has been expressly held to conform to the due process of law requirements of the XIVth A......