In Re Snelgrove

182 S.E. 335, 208 N.C. 670, 1935 N.C. LEXIS 94

• Court: Supreme Court of North Carolina
• Decided: November 1, 1935
• Status: Published

Opinion

Stacy, C. J.

The single question of law presented by the appeal is whether error was committed in denying respondent’s application and motion for certiorari. The court’s ruling is based upon the dual ground of laches and demerit. King v. Taylor, 188 N. C., 450, 124 S. E., 751. The judgment must be affirmed on authority of what was said in S. v. Angel, 194 N. C., 715, 140 S. E., 727: "Certiorari is a discretionary writ, to be issued only for good or sufficient cause shown, and the party seeking it is required not only to negative laches on his part in prosecuting the appeal but also to show merit, or that he has reasonable grounds for asking that the case be brought up and reviewed on appeal. Simply because a party has not appealed, or has lost his right of appeal, even through no fault of his own, is not sufficient to entitle him to a certiorari. ‘A party is entitled to a writ of certiorari when — and only when — the failure to perfect the appeal is due to some error or act of the court or its officers, and not any fault or neglect of the party or his agent.’ Womble v. Gin Co., 194 N. C., 577, 140 S. E., 230. Two things, therefore, should be made to appear on application for certiorari: First, diligence in prosecuting the appeal, except in cases where no appeal lies, when freedom from laches in applying for the writ should be shown; and, second, merit, or that probable error was committed on the hearing. S. v. Farmer, 188 N. C., 243, 124 S. E., 562.”

The appointment of a referee, for and on behalf of the court, was not a reference under the code, as respondent seems to think, but only the method employed by the judge of acquainting himself with the facts.

Affirmed.