Ex parte Barton , 70 N.C. 134 ( 1874 )

Bynum, J.

The writ of certiora/ri lies to correct errors of law, as a writ of false j udgment, or as a substitute for an appeal, and issuses when the party has been improperly deprived of his appeal, as a matter of course, and where he has lost his appeal by accident; it issues upon affidavit, and showing prima fade, a case of merits. Dougan v. Arnold, 4 Dev., 99.

In our case, a certiorari cannot issue as a writ of false judgment, for it is not affirmed or shown in the petitien, that any judgment at all, was rendered against the petitioner. A judgment is the foundation of the writ, in this aspect of the case.

If, however, the writ is applied for as a substitute for an appeal, to entitle him to it, the party must show that he has been improperly deprived of his appeal or has lost it by accident. The case does not show that an appeal was prayed even, much less that he was deprived of it by accident or otherwise; nor does the case show any merits which entitled him to relief in the Superior Court. McMillan v. Smith, 2 Car. L. R. 75; Collins v. Nall, 3 Dev. 224.

The case shows that an inquest of lunacy had been held upon one Thomas Barton at the instance of C. L. Barton, and that the Judge of Probate, of Person county, before whom it was held, had issued an execution against the plaintiff here, for the costs.

He has mistaken his remedy, whieh was by a motion in the cause, in the court which had jurisdiction of the proceedings in lunacy, and which had issued the execution.

There is no error.

Pee Cukiam. Judgment affirmed.