Perry v. . Whitaker
Supreme Court of North Carolina
.P.btitioN for a Writ of Recorclari beard at- Spring Term;, 1877, of Wake Superior Court, before Buxton, J. ■ In an action heretofore had before a Justice of the Peace., in which J. D. Whitaker was plaintiff and tí. W. Perry and W. R. Perry were defendants, a judgment was rendered for plaintiff on the 21st of December, 1875. .'The plaintiff says; in his petition that he has a good defence to the notes upon which said judgment was rendered.
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.P.btitioN for a Writ of Recorclari beard at- Spring Term;, 1877, of Wake Superior Court, before Buxton, J. ■ In an action heretofore had before a Justice of the Peace., in which J. D. Whitaker was plaintiff and tí. W. Perry and W. R. Perry were defendants, a judgment was rendered for plaintiff on the 21st of December, 1875. .'The plaintiff says; in his petition that he has a good defence 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,…
1Opinion of the CourtBynum, J.
This is a petition for a writ of recordari. 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 orn-ease. 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…
2Cases cited2 opinions
- Cardwell v. . CardwellSupreme Court of North Carolina · 1870
- Collins v. . GilbertSupreme Court of North Carolina · 1871
3Cited by4 opinions
- Freeman v. BennettSupreme Court of North Carolina · 1958
- Stewart v. . CravenSupreme Court of North Carolina · 1933
- Merrell v. . McHoneSupreme Court of North Carolina · 1900
- Williams v. BaileySupreme Court of North Carolina · 1919