Taylor v. Johnson

• Decision Date: 01 March 1916
• Docket Number: 122.
• Citation: 87 S.E. 981,171 N.C. 84
• Parties: TAYLOR v. JOHNSON ET AL.
• Court: North Carolina Supreme Court

87 S.E. 981

171 N.C. 84

TAYLOR v. JOHNSON ET AL.

No. 122.

Supreme Court of North Carolina

March 1, 1916

Appeal from Superior Court, Harnett County; Devin, Judge.

Action by F. H. Taylor against A. F. Johnson and another. From a judgment denying plaintiff's motion to dismiss defendants' appeal from the recorder's court plaintiff appeals. Appeal dismissed.

Civil action heard on motion to dismiss defendants' appeal from the recorder's court. It appeared that the action, one of debt, was instituted in the recorder's court of said county and judgment was rendered in plaintiff's favor in August, and defendants took an appeal therefrom more than ten days before the next or September term of superior court of said county, and at this (the next) term of superior court said appeal was not entered or docketed, nor was there any motion made for recordari or certiorari. At the following (the November) term, of superior court, the appeal having in the meantime been entered on the docket, plaintiff, by his counsel, moved that said appeal be dismissed, and on judgment denying plaintiff's motion, he excepted and appealed.

The writ of certiorari or recordari to review the judgment of a lower court will be issued only on a proper showing of merits, on affidavit filed.

E. F Young, of Dunn, for appellant.

Chas. Ross, of Lillington, for appellee.

HOKE J.

The statute establishing a recorder's court for Harnett county (Public Local Laws 1913, c. 602) confers criminal jurisdiction in certain specified causes with the right of appeal therein. The act also confers jurisdiction in cases of contract and tort, the former to the amount of $500, and the latter of $300; but in civil causes no appeal is provided for. This right of appeal from a lower to a higher court was not recognized at common law in causes of this character. In such cases relief from erroneous judgments was obtained by writ of error or of false judgment; these writs emanating from some higher court. State v. Bailey, 65 N.C. 426; 2 Cyc. p. 519. In our state this method of review can be made available by writs of certiorari or recordari, the former being the appropriate term when it issues to a court of record, and, except in very restricted instances, such a writ will be issued only on a proper show of merits, on affidavit filed, and at the next term of the supervising court following a trial of the cause in the court below. Marler v. Clothing Co., 150 N.C. 519, 64 S.E. 366; Johnson v. Reformers, 135 N.C. 385, 47 S.E. 463; Boing v. Railroad, 88 N.C. 62; Koonce v. Pelletier, 82 N.C. 237. And under our decisions these writs, in proper instances, are to be applied for in orderly procedure to our superior courts as courts of general jurisdiction, vested by our Constitution and statutes with appellate and supervisory powers over the judicial action of all the inferior courts of the state. State v. Tripp, 168 N.C. 150, 83 S.E. 630; Rhyne v. Lipscombe, 122 N.C. 650, 29 S.E. 57; Revisal 1905, § 584.

Speaking to this question in Tripp's Case, the court said:

"Both under our Constitution and statutes the writs of certiorari, recordari, and supersedeas, 'as heretofore in use,' have full vigor in this state (Const. art. 4, § 8, and Revisal, § 584), and whenever a substantial wrong has been done in judicial proceedings, giving a litigant legal right to redress, and no appeal has been provided by law, or the appeal that is provided proves inadequate, the Supreme Court, under the constitutional provision, to all courts of the state and the superior courts of higher jurisdiction, by reason of the statute (and well-sustained precedents), to all subordinate courts over which they exercise appellate power, may issue one or more of these important writs, and under it see that

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