Opinion
(December Term, 1860.)
1. Where a petition for a certiorari sets out that the petitioner was detained at home by violent sickness when his cause came up in the county court for trial, and afterwards, during the whole of the term, and that after judgment his counsel prayed and obtained an appeal to the Superior Court, upon condition of his giving security for the appeal, which he failed to do by reason of his detention at home, it was Held, that these facts were sufficient to rebut the idea of his having abandoned his right to appeal, and entitled him to a certiorari.
2. Where a judgment had been rendered against a surety on a bail bond in the county court, and he filed a petition for a certiorari in the Superior Court, stating that he expected to be able to discharge himself from liability by the next term of the court by a surrender of his principal, it was Held, that this statement did not render him obnoxious to the charge of appealing merely for delay.
APPEAL from an order dismissing a petition for a certiorari, heard before Dick, J., at last Fall Term of MECKLENBURG.
Wilson for petitioner.
Lowrie for defendant.
The petition discloses the following facts: The petitioner and one Cook were special bail for one James Whitesides. A judgment was obtained against Whitesides in the county court of Mecklenburg, (116) upon which execution issued and was returned "nulla bona."
A scire facias then issued against the petitioner and Cook. When the scire facias was executed upon the petitioner he employed counsel, who appeared and entered his pleas at January Term, 1859. The cause was then continued until April Term, 1859, when petitioner attended court and spoke to his counsel about his said cause. This occurred on Tuesday of the term; on Tuesday evening he returned home, intending to return to the courthouse during the week to attend to the said cause; that on the same evening he was taken violently sick, and was unable to return to town or attend to any business during the remainder of the week; that when his cause was reached his counsel was not informed of his sickness, and, being compelled to try the cause, judgment was obtained against petitioner and Cook; that his counsel prayed an appeal from this judgment to the Superior Court, which was granted and entered of record, but that petitioner failed to give security on account of his absence, and that his said absence was occasioned solely by the sickness aforesaid. The petition further states that petitioner expected to be able to discharge himself as bail by surrendering his principal by or before the next term of court.
Upon the return of the writ the defendant moved to dismiss the petition. Motion allowed. Petitioner appealed to this Court.
Where an appeal is not prayed for, the certiorari is not a matter of course, and the court will exercise a discretion in regard to the application. In such cases the petition must account for the fact why an appeal was not prayed, and there must be an (117) affidavit of merits, setting out the facts on which the party founds his belief that he has a good defense, so as to satisfy the court that his belief is well founded. Where an appeal is prayed for, and the court refuses to allow it, or the party is unable to give the security required by law, the certiorari is granted as a matter of course; Bledsoe v. Snow, 48 N.C. 99; McConnell v. Caldwell, 51 N.C. 469. It is, in effect, a mere application to be allowed to file an appeal bond nunc pro tunc.
In our case, an appeal was prayed for and granted upon giving an appeal bond according to law, and the case did not come up, because the bond was not given. So, the only question is, did the party fail to give the bond because he had abandoned his right to appeal, or because he was unable to procure the security required by the law, so as to acquit him of laches? Upon this point, the petition and affidavit are entirely satisfactory, for the petition sets forth that the defendant "attended court, and went home, intending to return during the week and attend to his case, but was taken violently sick and was unable to return or attend to any business during the rest of the week." This accounts for his not giving the bond, and excludes all idea of his having abandoned his right to appeal, and fully acquits him of any imputation of laches. As a matter of course, the party ought to be put in the same condition as if the appeal had been brought up in the regular way.
It was objected on the argument that the petitioner, by his own showing, had no defense at the time the judgment was rendered against him, and took the appeal because he expected to be able to discharge himself as bail by surrender of his principal by or before the term of the Superior Court to which the appeal was prayed, and this, as was insisted, proved that the appeal was taken merely for delay, and should, therefore, be made an exception to the general rule above stated. In support of this position, Betts v. Franklin, 20 N.C. 602, was relied on. It is true the petitioner admits he had no defense at the time the judgment was rendered in the county court, but it does not follow that the (118) appeal was taken merely for delay. On the contrary, the avowed object for appealing was because the party expected to have a good defense in the Superior Court, and to be then and there able to avail himself of his right to be discharged by the surrender of his principal, according to the provision of the statute made in favor of bail. So, the appeal was not for delay, and no reason can be suggested why one who is not in default should be deprived of an opportunity to make available a defense which is given to him by law, and should not be at liberty to extend the time by appeal or certiorari as a substitute for an appeal, as far as he is entitled to do, according to the course of the courts, without being obnoxious to the charge of appealing merely for delay.
Betts v. Franklin is not in point. No appeal was prayed in that case, and being on a ca. sa. bond, the party could not afterwards discharge himself by a surrender of his principal. So, he did not expect to be able to make a defense in the Superior Court, and the certiorari could answer no other purpose but to delay judgment. The general remarks made by the Court in that case must be referred to circumstances then presented, and have no application to the case now under consideration, which is peculiar, because of the right given to bail to make a surrender at any time before he is fixed with the debt.
There is error. The judgment dismissing the certiorari is reversed, and the case should be put upon the trial docket.
PER CURIAM. Reversed.
Cited: Vinson v. R. R., post, 120; Watson v. Pearson, 83 N.C. 311.
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