Opinion
(June Term, 1841.)
1. A certiorari will not be granted where a writ of error will lie.
2. Where certain defendants, sureties to a sheriff's bond, had obtained a certiorari to bring up a case from the county court, where judgment had been rendered against them, and upon the return of the certiorari the Superior Court directed the case to be placed on the trial docket and that a new trial be granted, and when the case came on, upon the motion of the defendants, ordered the suit to be dismissed because the defendants had not been duly served with notice as directed by law: Held, that this judgment was erroneous, and that the parties must proceed to trial upon the merits of the case.
APPEAL from Manly, J., at Spring Term, 1841, of WILKES. The defendants had obtained a certiorari upon an affidavit, stating that they were the sureties of one John J. Bryan, as sheriff of (409) Wilkes; that one Benjamin F. Petty (the present plaintiff), the county trustee, had caused a notice to be served on the said John J. Bryan alone, returnable to August Term, 1839, of Wilkes County Court, to show cause why judgment should not be rendered against him and his sureties for the amount of the taxes then in his hands; that judgment was rendered accordingly, at the said August term, against the said John J. Bryan and these defendants, for the sum of $1,406 and costs of suit; that the defendants had no notice nor knowledge of the making of any such motion, and no means of defending the same; and that the said John J. Bryan was in embarrassed circumstances, and the defendants were likely to suffer. And the defendants, upon this affidavit, prayed for a supersedeas to the execution issued on the said judgment, and a certiorari, and that the said judgment might be reversed, and they have an opportunity of pleading to the said cause. The certiorari being returned to the Superior Court of Wilkes, at April Term, 1840, the following order was then made: "It is ordered by the court, that this case be transferred from the appearance to the trial docket, and that the parties be reversed, and new trial granted to Edmund Jones, etc. (the present defendants)." The cause was continued until April Term, 1841, when the following order was made: "It appearing to the court that the defendants were not served with notice as by law required, ordered that this proceeding be dismissed." From this judgment the plaintiff appealed to the Supreme Court.
No counsel for plaintiff.
D. F. Caldwell for defendant.
The writ of certiorari from the Superior to the County Court, as it has been molded by judicial usages and legislative enactments to suit the convenience of our citizens, issues ordinarily after a judgment, to correct some alleged injustice which the party (410) complaining has not had an opportunity of causing to be corrected by the ordinary remedy of appeal. When the record is brought up by this writ, the first inquiry in the Superior Court is, whether there shall be a reexamination of the matter wherein the alleged injustice occurred. If this be decided in the negative, the certiorari is dismissed, and a procedendo awarded to the county court to execute its judgment; but if it be decided in the affirmative, then the proceeding by certiorari becomes, as to the matter complained of, that for which it is substituted, an appeal, a trial de novo both as to law and fact is awarded in the Superior Court, and the judgment to be reexamined is by such award annulled. This is the light in which the certiorari was in this case originally regarded, both by the petitioners and the court to which it was returned. The application for the writ was made in behalf of such only of the defendants in the judgment as felt themselves thereby aggrieved, and their prayer was that the judgment should be reversed, "and they have an opportunity of pleading to the said cause." And when, in obedience to the writ, the record was brought up to court, it was ordered that "a new trial be had, and that in the issue the defendant to the certiorari should be the party plaintiff, and the petitioners the defendants." But at the subsequent term, instead of proceeding to the trial of the merits involved in the issue, the petitioners prayed that the judgment below should be reversed for error, no further trial be had, and the parties dismissed from the court.
We think that the court erred in assenting to this prayer. The certiorari was not in the nature of a writ of error. It can operate as such only where a writ of error does not lie, and we see no reason to doubt but that a writ of error might have been sued out to reverse the judgment in this case. A general jurisdiction is expressly conferred by statute on the Superior Court to grant writs of error, for correcting all errors of the county court, and this grant of jurisdiction is limited only by the necessary and implied exception of those cases wherein (411) the errors of the inferior court cannot be corrected by such a writ. The judgment here complained of was not one of those cases. It was rendered in a civil suit, inter partes, on a matter of right, to be judged of by the law common to both courts, and whether the proceedings were to be in all respects according to the usages of the common law, except so far as the public statutes had interfered for expediting the process, pleadings, and trial therein. It has not heretofore been questioned, we believe, that in such a case any error to be found in the judgment of the county court might be revised by writ of error. See Guion v. Shepherd, 1 N.C. 253. Besides, in a writ of error, where there is a common judgment, all against whom it is rendered must join, for an entire judgment cannot be reversed in part.
The final judgment in the court below must be reversed, and the cause remitted to that court in order that a trial be had between the original plaintiff and the petitioners, as to their alleged indebtedness as the sureties of John J. Bryan.
PER CURIAM. Judgment accordingly.
Cited: Leatherwood v. Moody, 25 N.C. 133.