Walton v. . Pearson , 83 N.C. 309 ( 1880 )

The above entitled action was instituted on the administration bond of N.W. Woodfin deceased, as administrator of Charles McDowell deceased, against the present representatives of the said Woodfin, John Gray Bynum administrator de bonis non of Charles McDowell and R. M. Pearson, a surety to said bond, since deceased, and revived against Richmond Pearson his executor, and the breach assigned was the non-payment of a judgment recovered by the plaintiffs, assigned, pending this action, to James Wilson and S. McD. Tate, with an averment of assets come to hand sufficient to pay the same and a devastavit thereof by the said Woodfin.

The defence [defense] interposed by R. M. Pearson, the surety, was put on these grounds: 1st, that the action could not be maintained for the cause alleged by the plaintiff but only by the administrator de bonis non of Charles McDowell; 2nd, that the judgment, the non-payment of which is assigned as a breach, was a judgment quando and in law an estoppel as to the alleged devastavit; and 3rd, that the action was barred as to him by the statute of limitations.

On the trial before Judge Schenck, a jury trial being waived, His Honor found the facts and pronounced judgment in favor of defendants on the plea of the statute and against them on the other two defences [defenses], and the plaintiffs having taken an appeal but lost the same by reason of not perfecting it according to the code, at the last term of this court on their petition it was adjudged that their laches were excusable under the circumstances, and the case was ordered to be brought up to this court on a writ of certiorari as a substitute for appeal, and thus the case is constituted in this court for review as to error of law assigned in regard to the statute of limitations. See same case, 82 N.C. 464. At the present term of this court the record being brought up in answer to the writ ofcertiorari issued at the instance of the assignees of plaintiff, the defendant Richmond Pearson, executor of R. M. Pearson deceased, pursuant to notice presents his petition for a certiorari to bring up the record so as to enable him to have review of his exceptions to the rulings of the court below adverse to him, at the same time that a review is had on the plaintiff's appeal of the decision for him on the plea of the statute of limitations.

The plaintiff's assignees, Wilson and Tate, have been relieved against a lost appeal because of the reasonable expectation they had, that under the agreement between the parties, a statement of a case of appeal might be served at any time, if not too late to admit of the case coming up to the next term of the supreme court and their case being thus brought up, they may have reviewed any alleged error as to the plea of the statute of limitations, and the present application on the part of defendant for acertiorari to constitute the case in court for a review of the points decided adversely to him, is commended to the favorable consideration of the court, from the fact that they intended to appeal if plaintiffs appealed, and specially for the additional reason that they were informed and relied on the information that there was no intention to appeal on the part of the plaintiffs.

Whenever a party is deprived of his appeal or induced into a neglect to take and perfect his appeal within the time prescribed by the statute by the conduct or declarations of the adverse party (unintentionally in this case) the rule is to grant the writ of certiorari as a substitute for the appeal. Collins v. Nall, 3 Dev., 224; Lunceford v. McPherson, 3 Jones, 174;Sharpe v. McElwee, 8 Jones, 115.

Here, the petitioner Richmond Pearson, executor of R. M. Pearson, showeth that he intended (the decision in the court below being in his favor) to appeal only in the event that an appeal was taken on the part of the plaintiffs, and that being informed by one of the counsel of plaintiff's, admitted to be continued as such by the assignors of plaintiffs, that no appeal would be taken by them and relying on that statement he had omitted to take any steps towards perfecting his appeal until served with notice of the application for the writ on the part of the plaintiffs at the last term. And in excuse of the apparent laches in not applying for the writ at the last term of the court, it is urged by petition that having been informed by Wilson and Tate through one of their counsel that they had no intention to appeal, and in reliance on that information having paid out a large sum of money to the legatees of his testator, he might with propriety resist the grant of the writ for them and await the action of the court on their application before taking any proceedings for a certiorari on his own behalf. And it is alleged, as was the fact, that the decision of the court to award the writ to Wilson and Tate was so near to the end of the term that petitioner had not an opportunity to make his application after the opinion of the court was filed.

In our opinion all laches of petitioner in not appealing from the judgment of the court below is excused by the reasonable expectation he had that no appeal would be taken by Wilson and Tate, induced unintentionally by one of their counsel, and that the imputed default in not applying for the writ of certiorari at the last term of this court is also excused by the fact that petitioner might properly resist the application of his adversaries, and that after the decision of the court was announced he had not the opportunity to take any steps in his own behalf before the end of the term and the writ now applied for must therefore be issued so as to bring up the appeal for review of the questions made and ruled against the petitioner, and it is so ordered.

PER CURIAM. Certiorari granted.