Opinion · Supreme Court of North Carolina

Samuel Weber and Wife v. . Benjamin Taylor

66 N.C. 412

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1872-01-05
Topic
general

PbabsoN, C. J. The only question presented is as to the power of this Court, to grant a wrifpof certiora/ri, in the nature of an appeal, without requiring bond and security as in -case of appeal. Upon the petitioners filing an affidavit such as would be required in the Superior Court to support an order for leave to sue in forma pauperis. “ To render an appeal effectual for any purpose a written undertaking must be executed on the part ot the appellant by at least two securities,” &e. This takes away the right of appeal without security, and we are forced to apply it to a certiorari, which is to answer for the purpose of an appeal.

Citator

UpLaw has not yet analyzed Samuel Weber and Wife v. . Benjamin Taylor. The absence of a flag is not a finding that it is good law.

Cited by
2 opinions
SAMUEL WEBER AND WIFEv. BENJAMIN TAYLOR,66 N.C. 412(1872)
SAMUEL WEBER and wifevs. BENJAMIN TAYLORet al.
Supreme Court of North Carolina
(January Term, 1872.)
This Court has no power to order acertiorariwithout requiring bond and security thereon.
This was an application made to this Court for acertiorariwithout giving bond and security, upon affidavit of insolvency, and certificate of counsel of merits. An ordernisiwas made and notice to the defendants, and this counsel was given, and was argued at the present term.
Islerfor the petitioner.

1. It is discretionary with the Court whether any pauper can sue in it.

2. Acts 1868-69, p. 220, prescribe thatanyJudge, c., may authorize any person to sue informa pauperis.Battle Sons contra.
PEARSON, C. J.
The only question presented is as to the power of this Court, to grant a writ ofcertiorari, in the nature of an appeal, without requiring bond and security as in case of appeal, without requiring bond and security as in case of appeal. Upon the petitioners filing an affidavit such as would be required in the Superior Court to support an order for leave to sue informa pauperis.

"To render an appeal effectual for any purpose a written undertaking must be executed on the part of the appellant by at least two securities,"c. This takes away the right of appeal without security, and we are forced to apply it to acertiorari, which is to answer for the purpose of an appeal. C. C. P., sec. 303.

If permitted to speculate upon the reason for not allowing an appeal informa pauperisit might be suggested that itPage 413was supposed that the judgment of a Superior Court, raised so strong a presumption against the party, that it was not right to allow the litigation to be proceeded in further, unless the costs of the other party and of the officers of the Court were secured.Certiorarirefused.

PER CURIAM. Rule discharged.