Dawsey v. . Davis

If the cause be now dismissed from this Court, a procedendo must issue to enforce the execution of the judgment below, because the obtaining acertiorari was for the purpose of having it determined by the Court here whether it was proper to grant a new trial, and the judgment below remains in force until an argument be had here and the new trial granted; and if the cause should be dismissed before the new trial is granted, the obstacle to the execution of judgment being removed, it remains to be executed; and the Court here ought to certify the court below of this proceeding, which is done by a procedendo.

The counsel for the defendant then moved that the cause should be set aside for trial at the next term. *Page 222

When a cause is removed by certiorari granted by a judge out of court it must be placed on the argument docket; and the affidavits of the defendant may be received to show the impropriety of granting the new trial. The Court, therefore, will not order a new trial, until the affidavits on both sides be received. The affidavits were then produced on the part of the plaintiff in the certiorari the defendant had none; but these being not sufficient to grant a new trial upon, the Court ordered the cause to stand over for other affidavits, which it was said could be procured.

It was further laid down by the Court in this case as the rule (281) of practice that if the certiorari was obtained in this Court upon a rule made on the other party to show cause, and upon argument had upon that rule, that then the cause when removed should be placed immediately on the docket of causes for trial, without any further argument to be had; but if obtained before a judge out of court, then it was subject to the rule above mentioned.

See Anonymous, post, 367; Reardon v. Guy, 3 N.C. 245.