Opinion
(December Term, 1860.)
A suit at law cannot be removed into this court by consent.
PETITION for a certiorari, heard before Disk, J., at Fall Term, 1860, of ROWAN.
Miller and Kittrell for plaintiff. (135)
Blackmer for defendant.
Upon the hearing of the petition, answer, and affidavits, his Honor dismissed the petition. It was agreed that the plaintiff should have until 1 January, 1861, to file affidavits. Both the counsel of the plaintiff and defendant agreed to transfer the case to the Supreme Court, upon the facts as contained in the petition and answer.
In the view of this case taken by the Court, it is deemed unnecessary to set out the contents of the petition and answer.
This case seems to have been brought into this Court under a double misapprehension — first, as to the analogy between it and a case in equity, and, secondly, as to the rule in equity for removing cases in this Court.
The case, after judgment below, has been sent here by consent. This cannot be done. If it were a case in equity, a removal by consent, after a decree below, for the purpose of revising that decree would be inadmissible. An appeal is the remedy.
Our jurisdiction in law cases is entirely appellate, and with respect to a case like the one before us, the propriety of the judgment in the Superior Court would be tested by a consideration of the evidence before that court alone. We have no means of knowing what that evidence was. No case is sent up by the court, and inasmuch as it was consented that petitioner might file affidavits until the first of January, 1861, we are unable to say which affidavits were filed before and which after the judgment below. But independently of this difficulty, we consider the mode itself by which the case has been brought into the Court irregular, and this forbids our taking jurisdiction of it. A case at law cannot be sent here by consent, before judgment, nor after judgment.
In the latter case (after judgment) it is brought up by appeal, or by proceedings in the nature of an appeal. The statute giving law jurisdiction to this Court, Rev. Code, chap. 33, sec. 6, uses the language, "All questions of law brought before it by appeal or otherwise from the Superior Court." The word "otherwise," in this connection, has been practically held to mean nothing more than proceedings in the nature of an appeal, such as a "certiorari."
No instance is known, as I am informed, of a case brought (136) here in any other way.
To hold that questions could be brought up by the consent of parties, irrespective of the cooperation of the court, would be totally inconsistent with its dignity, and with the true, orderly, and congruous character of its records.
Another difficulty in the course pursued in this case is that the judgment of the Superior Court is not vacated, and, but for a faithful adherence to some understanding of the parties to the contrary, the case might be finally disposed of while we are considering in this Court the questions of law said to be involved in it.
PER CURIAM. Petition dismissed.
Cited: Rush v. Steamboat Co., 68 N.C. 73.