Legal Opinion

Nicholls v. . Dunning

Supreme Court of North Carolina

Decided February 5, 1888Published

Appeal — Certiorari—Lost Record. This is an APPLICATION pop, the writ op certiorari, to be directed to the Clerk of the Superior Court of Bertie County, •commandiug him to send up a transcript of the record in this cause, which had been tried at the Spring Term, 1882, before Bennett, J. It was heard upon petition, answer and affidavits. The action was tried at Spring Term, 1882, and upon the verdict, judgment was rendered for the plaintiff, and the defendant appealed.

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Appeal — Certiorari—Lost Record. This is an APPLICATION pop, the writ op certiorari, to be directed to the Clerk of the Superior Court of Bertie County, •commandiug him to send up a transcript of the record in this cause, which had been tried at the Spring Term, 1882, before Bennett, J. It was heard upon petition, answer and affidavits. The action was tried at Spring Term, 1882, and upon the verdict, judgment was rendered for the plaintiff, and the defendant appealed. To prepare the case on appeal, the original papers passed into the hands of the Judge. Other papers, among which were the…

1Opinion of the Court

Smith, C. J.,

(after stating the case). From this narrative of facts it is manifest that the fault lies not at the door of the appellant, and that the inability to make up the record was in consequence of the absence of the original papers in the hands of the Judge who tried the cause. But that a proper effort had not been made to obtain their restoration a new trial might have been awarded, as intimated in the opinion upon the hearing of the former application, and upon the authority of the cases therein referred to. “ Our power,” say the Court, “is to cause the record to be sent up, and when…

2Cases cited1 opinion

  1. Nichols v. . DunningSupreme Court of North Carolina · 1884

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