Perry v. Shepherd
| Decision Date | 31 January 1878 |
| Citation | 78 N.C. 83 |
| Parties | GIDEON PERRY and others v. AUGUSTUS SHEPHERD and others. |
| Court | North Carolina Supreme Court |
APPLICATION for a Writ of Prohibition heard at Chambers in Raleigh on the 28th of January, 1878, before Cox, J.
The plaintiffs alleged that the defendants had instituted an action of Forcible Entry and Detainer before a Justice of the Peace against them, and were prosecuting the same in the Justice's Court without authority of law, and demanded that said Justice be restrained and prohibited from proceeding further in said action, and that the same be transmitted to the Superior Court of Wake County.
The defendants demurred and assigned as cause; 1st. That plaintiffs could obtain complete and adequate redress for the alleged wrongs complained of in their complaint, by a writ of recordari from the Superior Court, and without resorting to the extraordinary prerogative writ of prohibition; 2d.--That the complaint shows that the Justice of the Peace has jurisdiction to take cognizance of, hear and determine proceedings for forcible entry and detainer.
His Honor adjudged that the demurrer be overruled, and the writ of prohibition issue as prayed for in the complaint. From which judgment the defendants appealed. (See Perry v. Tupper, 74--722; S. C. 71--380, 5; S. C. 70--538.)
Messrs. D. G. Fowle, Busbee & Busbee, A. M. Lewis and G. H. Snow, for plaintiffs .
Messrs. E. G. Haywood and A. W. Tourgee, for defendants .
Our reports furnish but one instance of the use of the writ of prohibition in the State, which must be owing to the fact that we have other remedies more appropriate and equally efficacious. It cannot be said that a new case has arisen calling for this unusual remedy, because forcible entry and detainer as this was, which is sought to be prohibited, has been common in our Courts. The case alluded to in which it was resorted to, is State v. Allen, 2 Ire. 183, in which it was sought to prohibit the de facto Commissioners for laying off the seat of justice of Henderson County from acting. It was held that it would not lie in that case, and the Court did not say that it would lie in any case, but did say that if any Court had the power, it ought to be exercised with caution, and never used except in a very clear case calling for an immediate remedy.
And the same rule obtains in England where it is a common law writ, framed to give the King's Bench jurisdiction to restrain all the inferior Courts of the realm within their proper jurisdiction. And it was subsequently extended to the other Courts at Westminster. Bacon's Ab. Title, Prohibition, A.
It will be observed that no inferior Court in England had power to issue the writ. It was a high prerogative writ, and in the case of the Company of Horners in London, it is said that it is the proper power and honor of the Court of King's Bench to limit the jurisdiction of all other Courts. Bacon's Ab. Title, Prohibition, A, note a 2 Roll. R. 471. If then it be used in this State at all, what Court ought to issue it? It would seem upon principle and by analogy, that it ought to be the Supreme Court, and not an inferior Court.
If there was any doubt before the adoption of our present Constitution, it would seem to be plain now. The jurisdiction of the Superior Court is defined in the Constitution and in the statutes. It is a Court of original jurisdiction, to hear and determine cases indicated, and to try appeals from inferior Courts. But there is no power express or implied to supervise and control inferior Courts. But that power is expressly given to the Supreme Court.
“The Supreme Court shall have * * * power to issue any remedial writs necessary...
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Holly Shelter R. Co v. Newton
...methods, as appeal, injunction, etc., or when no irreparable damage will be done. State v. Allen, 24 N. C. 183; Perry v. Shepherd, 78 N. C. 83; State v. Whitaker, 114 N. C. 818, 19 S. E. 376. These seem to be the only cases in which application for this extraordinary remedy has been made in......
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State ex rel. Poole v. Nuchols
... ... of last resort general supervision and control over the ... inferior courts as in North Carolina (Perry v ... Shepherd, 78 N.C. 83) ... Is the ... court-martial such an inferior court as this court has ... superintending control ... ...
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Holly Shelter R. Co. v. Newton
...remedy by ordinary methods, as appeal, injunction, etc., or when no irreparable damage will be done. State v. Allen, 24 N.C. 183; Perry v. Shepherd, 78 N.C. 83; State Whitaker, 114 N.C. 818, 19 S.E. 376. These seem to be the only cases in which application for this extraordinary remedy has ......
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State v. Inman
...of prohibition is considered discretionary and has been uni-[31 S.E.2d 647]formly denied where there is other remedy. Perry v. Shepherd, 78 N.C. 83; Railroad Co. v. Newton, 133 N.C. 136, 137, 45 S.E. 549; State v. Whitaker, 114 N.C. 818, 19 S.E. 376. The defendants' apprehension that they m......