Sharpe v. . McElwee
Supreme Court of North Carolina
Appeal from an order dismissing a petition fora certiorari, heard before Dick, J., at the last fall Term of Mecklenburg Superior Court. 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, upon which execution issued and was returned “ nulla bona.”
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Appeal from an order dismissing a petition fora certiorari, heard before Dick, J., at the last fall Term of Mecklenburg Superior Court. 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, upon which execution issued and was returned “ nulla bona.” A sows facias then issued against the petitioner and Cook. '"When the sci. fa. was executed upon the petitioner, he employed counsel, who appeared and entered his pleas, at January Term, 1859. The cause was…
1Opinion of the CourtPearson, C. J.
"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 eases, the petition must account for the fact, why an appeal was not prayed, and. there must be an 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 prmjed for, and the court refuses t@ allow it, or the party is unable to give the security required by law, the certiorari is granted as a matter of…
2Cited by2 opinions
- State v. LewisSupreme Court of North Carolina · 2012
- Betts v. . FranklinSupreme Court of North Carolina · 1838