Weaver v. Vein Mountain Mining Co.
| Decision Date | 31 October 1883 |
| Citation | 89 N.C. 198 |
| Court | North Carolina Supreme Court |
| Parties | A. K. WEAVER v. VEIN MOUNTAIN MINING COMPANY. |
OPINION TEXT STARTS HERE
PETITION for recordari heard at Chambers in Jefferson, Ashe county, on the 16th of May, 1883, before Gudger, J.
The action in which this proceeding was had originated in McDowell county. The plaintiff had obtained judgment against the defendant company before a justice of the peace on a contract for services rendered to it, and on the 7th of May, 1883, notice of the intended application of defendant for a writ of recordari was served upon the plaintiff. The plaintiff demanded oyer of the petition for the writ, which was refused by defendant, and thereupon the plaintiff prepared affidavits in opposition to the motion to grant the writ, and filed them on the day of the hearing before His Honor by way of answer to the petition, together with a transcript of the proceedings had before the justice of the peace. Upon the hearing, the judge refused to entertain the affidavits and exhibits of the plaintiff or to find the facts, but granted the defendant's motion, and the plaintiff appealed.
Messrs. Sinclair & Sinclair, for plaintiff .
Messrs. Erwin & Morris and Battle & Mordecai, for defendant .
The writ of recordari under the former practice and retained in the new, as has been often declared, is used for two purposes: the one, in order to have a new trial of the case upon its merits, and this is a substitute for an appeal from a judgment rendered before a justice; the other, for a reversal of an erroneous judgment, performing in this respect the office of a court of error or a writ of false judgment. Leatherwood v. Moody, 3 Ired., 129; Webb v. Durham, 7 Ired., 130.
The remedy was usually sought in a direct ex-parte application to the judge in a verified petition setting out the facts, and the writ issued upon sufficient cause shown. Upon its return the opposite party was heard upon his motion to dismiss, or the petitioner's to have the cause docketed for trial. Caldwell v. Beatty, 68 N. C., 399.
Thus there were two hearings; the first, upon the prima facie case made by the petitioner and its sufficiency to warrant the awarding the writ, where the proceeding is to have a retrial as upon an appeal; the other, upon the opposing proofs offered, when it is proposed to put the cause on the docket, the writ having performed its office in bringing up the record. This mode of proceeding, it is true, secures all the just rights of the party who has recovered the judgment to be disturbed, and may sometimes require prompt action to arrest its enforcement by execution, not admitting of the delay necessary to give notice. But when the necessity for a supersedeas is not urgent and permits the delay, we see no sufficient reason why the merits may not be inquired into upon evidence and a final disposition made of the application when presented, if the petitioner chooses to pursue this course and...
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King v. Wilmington & W. It. Co
...to cases other than "when used as substitutes for an appeal." But we are not without express decisions upon the point. In Weaver v. Mining Co., 89 N. C. 198, Smith, C. J., says: "The writ of recordari, under the former practice, and retained in the new, as has been often declared, is used f......
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King v. Wilmington & W. R. Co.
...for a recordari because, if granted, a supersedeas might issue. See Super. Ct. Rule 14, 104 N.C. 939, 12 S.E. Rep. xiii., and Weaver v. Mining Co., supra, which settle the procedure in applications for Whether there could be asupersedeas upon an appeal from a refusal by the justice to set a......
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Marler-dalton-gilmer Co v. Wadesboro Clothing & Shoe Co
...may be used, under the statute (Revisal 1905, § 584), either as a substitute for an appeal, or as a. writ of false judgment. In Weaver v. Mining Co., 89 N. C. 198, it was said by the court that "the writ of recordari under the former practice, and retained in the new, as has been often decl......