Chastain v. . Chastain

87 N.C. 283

• Court: Supreme Court of North Carolina
• Decided: October 5, 1882
• Status: Published

Opinion

Ruffin, J.

The court feels constrained, though reluctant, to yield to the plaintiff’s motion to distoiss. A certiorari, being but a substitute for an appeal, can only be allowed upon the same terms as are prescribed for it, and must be attended by like security. Estes v. Harrison, 1 Dev. 354.

The defendants having, themselves,recognized the record sent from the superior court as a return to the writ of cer-tiorari issued from this court, and as such procured the same to be docketed, it is now too late to disclaim it. Besides this, it is attached to and associated with the writ, and it is impossible to avoid knowing that it was sent in obedience to the writ and as a return thereto.

As decided in Hutchison v. Rumfelt, 82 N. C., 425, a motion to dismiss an appeal for irregularity may, under the rule of this court, be made at the time when the cause is called for trial, though it may have been on the docket at a previous term and continued for want of time to try it.

It is much to be hoped that the legislature will, in some way, relieve the court and the parties from the present stringent requirements of the law with reference to appeals.

The terms of the statute are so plain that we could give them no other interpretation than the one adopted in Bryson v. Lucas, 84 N. C., 397, and yet we are painfully conscious, at times, of its doing injustice to parties.

The motion to dismiss is allowed.

Per Curiam. Motion allowed.