Ray v. . Ray

Supreme Court of North Carolina

Ray v. . Ray

34 N.C. 24

CourtSupreme Court of North Carolina

DecidedJune 5, 1851

StatusPublished

Cited by2 cases

This text of 34 N.C. 24 (Ray v. . Ray) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ray v. . Ray, 34 N.C. 24 (N.C. 1851).

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Opinion

Pearson, J.

There is no error, A judgment for the-costs of the County Court ought not to have been rendered in the Superior Court, because it was repugnant, and inconsistent with the fact, that there' was no right of appeal, and of course no case constituted in that Court.

After the appeal to this Court, upon the question, as to the costs of the County Court, it was clearly right to refuse to grant a procedendo, because, thereby, the County Court would have been called upon to give a judgment, as to the costs of that Court, whereas the appeal assumed, that that judgment ought to have been rendered in the Superior Court, and it was repugnant and inconsistent, pending an appeal, which was taken to try the question, whether the Superior Court ought not to have given the judgment, to *26 move for a procedendo, under which the County Court must have given it.

Another view may be taken of the question. If the Superior Court refuses to obey the mandate of this Court, the ■.counsel is not to appeal, for there is no question to be reviewed, but to apply for a mandamus. In this case, the ■refusal is accounted for and explained by the fact of the appeal, as to the question of costs, pending which, the proce-diendo ought not to have been sent, for thereby the case would have been split ■up and put in two Courts at the same ■time.

Per Curiam. Judgment affirmed.

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Pearson, J.

There is no error, A judgment for the-costs of the County Court ought not to have been rendered in the Superior Court, because it was repugnant, and inconsistent with the fact, that there' was no right of appeal, and of course no case constituted in that Court.

After the appeal to this Court, upon the question, as to the costs of the County Court, it was clearly right to refuse to grant a procedendo, because, thereby, the County Court would have been called upon to give a judgment, as to the costs of that Court, whereas the appeal assumed, that that judgment ought to have been rendered in the Superior Court, and it was repugnant and inconsistent, pending an appeal, which was taken to try the question, whether the Superior Court ought not to have given the judgment, to *26 move for a procedendo, under which the County Court must have given it.

Another view may be taken of the question. If the Superior Court refuses to obey the mandate of this Court, the ■.counsel is not to appeal, for there is no question to be reviewed, but to apply for a mandamus. In this case, the ■refusal is accounted for and explained by the fact of the appeal, as to the question of costs, pending which, the proce-diendo ought not to have been sent, for thereby the case would have been split ■up and put in two Courts at the same ■time.

Per Curiam. Judgment affirmed.

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Bluebook (online)

34 N.C. 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-v-ray-nc-1851.

Opinion

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