William H. Howerton v. . S. McD. Tate

66 N.C. 231

• Court: Supreme Court of North Carolina
• Decided: January 5, 1872
• Status: Published

Opinion

PeaesoN, 3.

Supposing the writ of mandamus to be the proper remedy, which we do not concede, C. C. P., sec. 366 & 367, (see Clark v. Stanly, at this term,) the proceeding was not properly instituted. ' The order for the writ must be made in term time, and be returnable in term time. It was conceded, such was tire practice, under the old system ; but it was insisted that the 0. 0. P. had made a change. We do not think so. It is not an ordinary civil action, or a special proceeding, if so, it should have been commenced by summons, but it is neither an ordinary civil action, nor a special proceeding, to be returned before the Clerk.

It is a high prerogative writ, embraced under sec. 392, “ If a case shall arise, in which an action for the enforcement, or protection of aright, or the redress or prevention of a wrong, .cannot be had under this Act, the practice heretofore in use, may be adopted so far as may be necessary to prevent a failure of justice.

Tiierjs is No’ Eekoe, Judgment affirmed.