Roulhac v. . Brown
Supreme Court of North Carolina
Appeal from an order made at Fall Term, 1882, of OrANGE Superior Court, by Graves,-J. This appeal presents but one question for consideration, and that is whether a motion to vacate an order of arrest can be entertained after a similar motion had been made in the progress of the cause, upon the same grounds, and refused. The action in which the motion was made was commenced by summons on the 5th day of September, 1881, and a complaint was filed the same day.
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Appeal from an order made at Fall Term, 1882, of OrANGE Superior Court, by Graves,-J. This appeal presents but one question for consideration, and that is whether a motion to vacate an order of arrest can be entertained after a similar motion had been made in the progress of the cause, upon the same grounds, and refused. The action in which the motion was made was commenced by summons on the 5th day of September, 1881, and a complaint was filed the same day. The plaintiff also ■obtained an order of arrest on the same day returnable before the clerk of the superioi court on the 4(h day of…
1Opinion of the Court
Ashe, J.,
after stating the above. We are unable to discover any error in the ruling of His Honor, or in the reasons assigned for bis conclusion. The motion to discharge the defendant from custody was in effect a motion to vacate the order of arrest, which is the only means provided by which a defendant under arrest under such circumstances can obtain his deliverance, and that motion, as His Honor correctly held, can only be made before judgment, (C. C. P., § 174.) And the ground of the motion that there was no allegation of fraud in the complaint is untenable. It was not necessary that the…
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