Opinion
(December Term, 1845.)
1. The writ of recordari is the foundation of all the proceedings in a case of false judgment.
2. Therefore, where a recordari was returned and heard upon affidavits, the court had a right to order the cause to be placed on the trial docket and stand there as on a writ of false judgment.
APPEAL from HENDERSON Fall Term, 1845; Caldwell, J.
De Choiseul for plaintiff.
Badger for defendant.
The defendant had issued an original attachment against one Cagle, returnable before a justice of the peace. The plaintiff had been (222) summoned as a garnishee, and the justice had rendered a judgment against him on his garnishment. The plaintiff afterwards made the affidavit mentioned in the case, and obtained from a judge a writ of recordari, and removed the proceeding on the said attachment and garnishment into the Superior Court of Henderson County. In that court affidavits were filed by both parties; and, after argument on them, the court made the following order: "Ordered that this cause be placed on the trial docket and stand there as on a writ of false judgment." From this order the defendant appealed to this Court.
The defendant insists that the writ of recordari was sued out by Parker only to obtain a new trial on his garnishment. And as the affidavit filed in the cause satisfied the court that he was not entitled to a new trial, the recordari should have been dismissed. It was, therefore, error in the court to have made the order that it did.
When we, however, look at the affidavit on which the recordari was granted, we see that Parker prayed a recordari and supersedeas; and, further, that the court would "grant such other and further relief as may be necessary for him." The judgment rendered by the court, in effect, to have the case spread upon the records of the Superior Court to enable Parker to assign errors on it if he thought proper to do so, and proceed as in a case of false judgment, was, we think, within the scope of his application for the writ of recordari. This writ is the foundation of all the proceedings in a case of false judgment. 2 Sellons Prac., 544, 248. We think the judgment should be
PER CURIAM. Affirmed.
Cited: Webb v. Durham, 29 N.C. 133; Bailey v. Bryan, 48 N.C. 358; Hartsfield v. Jones, 49 N.C. 310; Hare v. Parham, ibid., 413; S. v. Swepson, 83 N.C. 588.
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