March v. Thomas

• Decision Date: 31 January 1869
• Citation: 63 N.C. 249
• Court: North Carolina Supreme Court
• Parties: W. B. MARCH and others v. JOHN W. THOMAS.

63 N.C. 249

W. B. MARCH and others

v.JOHN W. THOMAS.

Supreme Court of North Carolina.

January Term, 1869.

At Spring Term 1867 the plaintiffs appealed to the Supreme Court from a decree made at that Term; at the June Term 1867 of the Supreme Court they were informed that the case had not been sent up; but they took no further steps until January Term 1869, when they filed a petition in the Supreme Court for a certiorari; Held, that as the petitioners disclosed no merits in regard to the original cause of action, and had been guilty of laches in preferring their application--the petition should be refused.

PETITION for a certiorari, filed in this Court at the present term.

The case in which the certiorari was asked is that reported 63 N.C. 87.

The petition stated that the plaintiffs had appealed from the decree made at Spring Term 1867 of Davidson Court of Equity, and filed an appeal bond; that under the belief that the cause had been sent up, they employed counsel in the Supreme Court, but were afterwards informed by him that it had not been docketed; that the reference had miscarried in regard to certain items, and had included matters in which the petitioners had no interest. The defendant answered; and affidavits were taken, by one of which it appeared that the petitioners had been apprised at June Term 1867 of the fact that the case had not sent up to this Court.

Merrimon, for the petitioners .

Robbins, contra .

DICK, J.

The rules of law relating to writs of certiorari are well settled in this State, and they are fully considered and applied in the cases referred to in Battle's Digest.

When a person thinks that injustice or error has been done in his suit by an inferior Court of record, his ordinary remedies are an appeal, or writ of error, to a Superior Court to have the matter reheard. If these ordinary remedies are denied, or fail, without any default of the party desiring to use them, he is entitled to the extraordinary remedy of the writ of certiorari, but he must generally show upon his application that he has a prima facie case of merits, and has been guilty of no laches in seeking this remedy. Neither of these requisites have been shown by the petitioners. Their case, in the Court below, was referred, by their own counsel, to four eminent lawyers, two of whom were their counsel, and after long and full consideration, an award was made, and entered as a rule of Court. There is no suggestion of fraud or partiality in the...