Rush v. Halcyon Steamboat Co.

• Decision Date: 30 June 1872
• Citation: 67 N.C. 47
• Court: North Carolina Supreme Court
• Parties: BENJAMIN RUSH and M. A. RUSH v. HALCYON STEAMBOAT COMPANY.

67 N.C. 47

BENJAMIN RUSH and M. A. RUSH

v.HALCYON STEAMBOAT COMPANY.

Supreme Court of North Carolina.

June Term, 1872.

A defendant who has confessed judgment has no right of appeal from such judgment; but where an appeal was allowed in such case by a Justice of the Peace, and the plaintiff failed to move to dismiss the appeal in the Superior Court, the Supreme Court may pass by the irregularities and, regarding the proceedings as in the nature of a writ of false judgment, consider the errors assigned upon the record.

All intendments are taken most strongly against a party alleging error on the record; therefore, where a defendant confessed judgment before a Justice on a note given to the plaintiff, as administrator, for the rent of a house, and then appealed and objected in the Superior Court that the plaintiff had no right of action; held, on appeal to the Supreme Court, the record showing nothing to the contrary, that it must be presumed that the plaintiff's intestate had an estate for years, and not an inheritable estate in the premises.

CIVIL ACTION commenced before a Justice, and tried, upon appeal, before Buxton, J., at Spring Term, 1872, of the Superior Court of CUMBERLAND.

The action was for the recovery of $190 and interest, due by note given January 1st, 1869, by one R. M. Orrell, as agent of the defendant, to the plaintiffs “as administrators of Benj. Rush, deceased,” for “rents of wharf and warehouse until 1st January, 1870.” The defendant, by said Orrell, confessed judgment for the amount of the note and then appealed to the Superior Court.

The papers and statement of the case, as sent up by the Justice under orders from the Superior Court, show that the summons ran in the name of the plaintiffs “as administrators of Benj. Rush,” and that the complaint set forth that the defendant promised to pay them the sum of $190, with interest from January 1st, 1870, for the use of certain wharves and warehouses during the year 1869.

In the Superior Court the defendant “moved in arrest of judgment,” because it appears from the complaint, 1st, that the plaintiffs are not the real parties in interest; 2d, the plaintiffs have no right to maintain the action; 3d, that no license from the heirs-at-law of the intestate Rush to prosecute the action is alleged.

The motion in arrest was allowed by his Honor, and the plaintiffs appealed.

Hinsdale for the plaintiffs .

B. & T. C. Fuller for the defendants .

DICK, J.

At common law an unsuccessful party to an action had no right of appeal. If there was error in the proceedings and such error was apparent upon the face of the record, a remedy could be obtained by a writ of error; and if the action was in a Court not of record a writ of false judgment would lie. For a wrong verdict upon issues of fact there was no remedy which could be obtained as matter of right, but the Judge in his discretion could grant a new trial.

In this State the right of appeal is regulated by statute, and is allowed to a party to an action, or other legal...