Utley v. . Peters
Supreme Court of North Carolina
Special proceedings, tried before Tourgee, J., at Spring Term, 1874, Oeange Superior Court. * 'This was a motion under sec. 85, C. C. P., to bo allowed to defendant after j udgment, and asking a writ of recordari to bring up certain proceedings before a magistrate necessary to defence against the judgment, and also to cancel a deed made by the Sheriff of Orange to one S. M. Barbee, conveying certain property sold, under execution.
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Special proceedings, tried before Tourgee, J., at Spring Term, 1874, Oeange Superior Court. * 'This was a motion under sec. 85, C. C. P., to bo allowed to defendant after j udgment, and asking a writ of recordari to bring up certain proceedings before a magistrate necessary to defence against the judgment, and also to cancel a deed made by the Sheriff of Orange to one S. M. Barbee, conveying certain property sold, under execution. The ease was heard upon affidavits and among others filed in the case, the defendant filed the following: “ F. C. H. Peters, being duly sworn, says: 1. That during…
1Opinion of the CourtReads, J.
If we felt at liberty to decide the case, we would probably have to take the facts in the case to be as stated by the defendant in her affidavit; and so taking them, the merits would seem to be in her favor. Rut, as we said in Clegg v. N. Y. Soap Stone Co., 66 N. C. R. 391, and numerous other eases since, the facts must be found below. To this end the cause will be remanded. Neither party will recover costs in this Court.
Pee Cuuiam. Case remanded.
2Cases cited1 opinion
- J. N. Clegg v. . the New York White Soap Stone Co.Supreme Court of North Carolina · 1872
3Cited by2 opinions
- Bacon v. . JohnsonSupreme Court of North Carolina · 1892
- Rhodes v. . RhodesSupreme Court of North Carolina · 1899