McMillan v. Smith
Supreme Court of North Carolina
A certiorari had been granted in this case by Lowrie, J. upon the affidavit of Smith, which stated in substance, that a suit was instituted against him and Walker in New-Hanover county court, by McMillan; and that the cause was pressed in the deponent’s absence, on Monday early in the afternoon of the first day of court, and a judgment obtained.
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A certiorari had been granted in this case by Lowrie, J. upon the affidavit of Smith, which stated in substance, that a suit was instituted against him and Walker in New-Hanover county court, by McMillan; and that the cause was pressed in the deponent’s absence, on Monday early in the afternoon of the first day of court, and a judgment obtained. That he understood a standing rule of the court had set apart the first day of the court for county business, and believed that no jury cause was usually pressed on that day; that the county business was not finished when the judgment was taken, which…
1Opinion of the CourtCameron, J.
In deciding on the propriety of retaining or dismissing the writs of certiorari obtained by the defendant Smith, a majority of the court exclude from consideration the affidavits of the plaintiff and his agent, which appear to have been improperly filed and sent up with the papers in this cause; in as much as they have been made and sworn to since the cases were transferred to this court by appeal; and regard only the affidavits which were read in the court below.
Whenever a party applies for an extraordinary remedy, to have his cause re-examined in a superior tribunal, he *78ought to shew some…
2Cited by3 opinions
- Baldwin v. StateSupreme Court of Missouri · 1848
- Crowe v. PetersSupreme Court of Missouri · 1876
- Williams v. . LeeSupreme Court of North Carolina · 1817