Opinion
(January Term, 1879.)
Practice — Certiorari — Appeal.
Where a certiorari returned to this court shows an imperfect record and no statement of the case, a new writ of certiorari will not be granted; but the appeal will be dismissed.
MOTION for a certiorari heard at January term, 1878, of the SUPREME COURT.
Messrs. Gilliam Gatling, for plaintiff.
Messrs. Batchelor and Mullen Moore, for defendants.
The defendants appealed from Chowan superior court to the June term, 1878, of this court, and on their motion, a writ of certiorari was issued to bring up the record. In answer to the writ, a transcript is certified and filed during the present term, and thereupon the plaintiff moves to dismiss the appeal, because it does not appear to have been taken and perfected according to law, and the defendants move for a new writ of certiorari.
From the transcript it does not appear that any appeal was taken. There is no entry of appeal taken of record, no notice of appeal, no appeal bond, and no statement of a case of appeal; and there being no proof by affidavit or otherwise, that any appeal was ever taken, or if taken, no suggestion made why it does not appear in the transcript already sent to this court, the motion of defendants for another writ of certiorari is refused.
The motion of plaintiff to dismiss the appeal is sustained.
PER CURIAM. Appeal dismissed.