Bledsoe v. Snow

Citations

• 48 N.C. 99

Syllabus

<p>Where a certiorari is sought as a substitute for an appeal, the party seeldng it must give ail explanation or excuse for not having appealed.</p> <p>Where the party applying prays an appeal, and the Court refuses to allow it, or where, after praying an appeal, he is unable to give security, a certiorari is a matter of course.</p> <p>But where an appeal is not prayed-, a certiorari is not a matter of course; the allegations in the petition must account for the fact that an appeal was not prayed, and there must bean affidavit stating affiant’s belief that he has merits, and must set out the facts upon which his belief is founded. The allegations accounting for the fact that no appeal was prayed, must be sustained by proof. The allegation as to merits need not be proved.</p> <p>Where the parties to a suit agreed at the trial term that the matter should be left to arbitration, atid a day was appointed, after the term, for the arbitrators to act, and the defendant left Court under an impression that the matter was not to be taken up at that term, but the plaintiff got two out of three of the arbitrators to sign an award, pretending that the matter had boon compromised and settled between the parties themselves, and by ex-; hibiting such award to the defendant’s counsel, induced him to withdraw his opposition to a judgment which was entered, and the defendant had no knowledge of such judgment being entered until after the term, it appearing, from the facts stated, that petitioner had merits, a certiorari was granted, and a new trial ordered.</p>