Opinion
(June Term, 1877.)
Practice — Appeal — Writ of Recordari.
No appeal lies from the refusal of the court below to grant a motion to dismiss a petition for writ of recordari. An appeal lies from the order of the court either granting or refusing to grant such writ.
PETITION for a writ of recordari, heard at Spring Term, 1877, (103) of WAKE, before Buxton, J.
A. M. Lewis and J. H. Fleming for plaintiff.
Walter Clark for defendant.
In an action heretofore had before a justice of the peace, in which J. D. Whitaker was plaintiff and G. W. Perry and W. R. Perry were defendants, a judgment was rendered for plaintiff on 21 December, 1875. The plaintiff says in his petition that he has a good defense to the notes upon which said judgment was rendered. The defendant moved to dismiss the petition. His Honor overruled the motion, and ordered the defendant to answer. The defendant accordingly filed an answer, and also appealed from the judgment of the court in refusing to dismiss the petition.
This is a petition for a writ of certiorari. An appeal lies from an order of the judge either granting or refusing to grant the writ, but no appeal lies where the judge has done neither the one nor the other, which is our case. When the plaintiff filed his petition, the defendant moved to dismiss it, and upon the refusal of the judge to dismiss, he appealed to this Court. A refusal to dismiss at that stage of the case was by no means the same as or equivalent to granting the writ. Before final action, the judge desired, and it was his duty, to ascertain the facts; hence he ordered the defendant to answer the allegations of the petition. The defendant did answer, notwithstanding his appeal, denying many of the allegations of the petition, and thus raising questions of fact for the decision of the court. But without awaiting the finding of the judge upon these issues, or any judgment granting or refusing the writ, and without predicating any motion upon the petition and answer, the defendant prosecuted and relied upon his previous appeal. The appeal was precipitate and from no appealable (104) order or judgment. Whether a writ of recordari ought to have been issued depends upon the facts. No facts are found by his Honor, and we cannot, therefore, see whether he ought or ought not to have issued the writ. But owing to the hasty appeal, his Honor was prevented from either finding the facts or giving a judgment granting or refusing the recordari. Collins v. Collins, 65 N.C. 135; Cardwell v. Cardwell, 64 N.C. 621.
If the case was properly before us, and it were allowable to us to ascertain the facts from the pleadings as now presented, we should say without hesitation that there is no case made out entitling the plaintiff to the writ. But for the reasons we have given, there is nothing before us to act on, and the appeal must be dismissed and the case
PER CURIAM. Remanded.
Cited: Merrell v. McHone, 126 N.C. 529; Hunter v. R. R., 161 N.C. 505.
(105)