171 S.E. 609 | N.C. | 1933
Upon petition of defendant in due form, the court below issued a writ ofrecordari, as a substitute for an appeal, to the justice of the peace who tried the action. No exception was entered to the granting of this writ. The order appealed from to this Court is as follows:
"This cause coming on to be heard on this 18 April, 1933, in chambers before his Honor, Judge E. H. Cranmer, one of the judges holding court for the Seventh Judicial District of North Carolina at Raleigh, North Carolina, and being heard upon motion filed by plaintiff for the purpose of setting aside a writ of recordari granted in this cause on ...... March, 1933, and being heard upon said petition and motion filed therein, the court finds the following facts:
1. That at 4:00 p.m., on 17 December, 1933, a judgment was rendered against the defendant without having had an opportunity to present his defense, that the defendant appeared for trial at 4:15 p.m., that a justice of the peace therein presiding did not allow the defendant to be heard, because he was too late, in spite of the fact that all of the said defendant's witnesses were present, that he did not reopen the case.
2. That the court further finds as a fact that the defendant is an ignorant Negro, that he is not guilty of laches and that he made his motion for a writ of recordari within the time allowed by law and has a meritorious defense.
It is therefore, on motion of J. A. Thebault, attorney for the defendant, considered, ordered and adjudged and decreed that the plaintiff's motion to set aside the writ of recordari granted in this cause, be, and the same is hereby denied and dismissed. That the defendant go hence without day and recover his costs."
The recordari was therefore granted and this appeal is made by plaintiff from a motion to set aside the writ of recordari.
It was held in Perry v. Whitaker,
In Merrell v. McHone,
From the record the action is in the Superior Court for trial de novo. We observe the motion was made at Chambers, but no point seems to be made of this.
Appeal dismissed.