Williamson v. . Boykin

10 S.E. 87, 104 N.C. 100

• Court: Supreme Court of North Carolina
• Decided: September 5, 1889
• Status: Published

Opinion

Avery, J.

If this Court has the power to vacate such a judgment at all, on the ground of surprise or excusable neglect (as the petitioners contend it has), the petitioner has not, even if the allegations of his petition be admitted, shown such facts as would justify the exercise of the right in this case. The proposition, upon its face, to first annul the order disallowing the motion for a writ of certiorari, and then rehear the petition, with such supporting affidavits as might be offered by the defendants, is certainly a novel one.

It is not necessary that we should determine whether we. could grant such relief in any case. It is sufficient to state that, conceding the power to exist, the petitioners have failed to show, in any view, such merit as ought to induce us to exercise it. Both petitioners and respondents were before this Court, arid had the opportunity to present affidavits of all persons who were cognizant of any material facts, and, from the nature of the case, they must have known the persons who were consulted or had knowdedge of any agreement in reference to the right of appeal, made while the parties were imparling as to a compromise.

To hold that the losing party might have the controversy re-opened now to strengthen his case, by the use of greater diligence in procuring affidavits, would be to make a precedent calculated to subvert the old maxim, “Interest republicsr, ut sit finis litis.

Petition dismissed.