Halifax County NcArchives Court.....Henry Austin, William Rodman V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 30, 2009, 12:42 pm

Source: Nc Reports
Written: 1819

William W. Rodman v. Henry Austin

From Halifax

May Term 1819

Under the act establishing the Supreme Court, a Judge of that Court cannot 
award a Writ of Certiorari in vacation. Application for the Writ must be made 
to the Court.

The statement of a case by the presiding Judge, if not certified or referred 
to in the transcript, as part of the record, cannot be taken notice of by this 
Court, and this Court, upon a review of the record, must pronounce the same 
judgment that the Court below ought to have pronounced.

William W. Rodman exhibited to the honorable John Hall, one of the Judges of 
this Court, in vacation, an affidavit complaining of a certain judgment 
rendered against him in the Superior Court of Law for Halifax, at the instance 
of Henry Austin, and stating the facts upon which his complaint was founded. 
He prayed for a Writ of Certiorari, to have the case brought up to this Court. 
His Honor doubted whether, under the act of Assembly establishing this Court, 
a Judge in vacation was authorized to award a Writ of Certiorari: he, however, 
did award it, with a view of having the opinion of the Court upon the 
question. Upon the return of the Writ, the Court after consideration, were of 
opinion that applications for Writs of Certiorari must be made to the Court; 
and thereupon the affidavit of Rodman being read, a motion was made on his 
behalf, that a writ of Certiorari be awarded: and it was agreed, in 
considering this motion, the Court might look into ihe record which have been 
certified to this Court by the Clerk of the Superior Court of Law for Halifax, 
and if they should be of opinion, upon an inspection of the record that they 
could not grant to Rodman a new trial, the motion for the Writ should be 
disallowed. Accompanying the transcript of the record, was a statement of the 
case, signed by the Judge who tried the cause; but it was not certified as a 
part of the record, nor referred to it in the transcript. It was therefore, 
contended on behalf of Austin, that it formed no part of the record referred 
to this Court, and that this court, under the act establishing it, could look 
to nothing but the transcript of the record certified by the Clerk of Halifax 
Superior Court; and this being examined, it shewed the writ, declaration, 
proceedings in the case up to final judgment, and a motion for a new trial, 
which was disallowed. It contained no statement of the case, to enable this 
Court to decide whether the opinion of the Judge who tried it, upon the 
several points stated in Rodmans' affidavit, was correct or not.

Henderson, Judge: This is a motion for a Certiorari, grounded on the papers 
returned to the present term between the same parties. Those papers are the 
plaintiff's affidavit, the record of a suit in Halifax Superior Court, between 
Austin, Plaintiff, and Rodman, Defendant, with a statement of the presiding 
Judge. From a view of these papers, we are of opinion that a Certiorari should 
not issue; for it would be entirely useless. The record does not exhibit those 
grounds of complaint stated in the affidavit, and we must, upon a view of it, 
pronounce the same judgment that was pronounced in the Court below, whatever 
might be our opinion if the Judge's statement formed a part of the case. But 
so far from its being entered on the record, it is not even referred to; and 
we cannot perceive how we can incorporate it with, or make it a part of the 
case. It might possibly he made at the time the cause was tried, or it might 
have been made a month afterwards. It would, therefore, be vain and useless to 
issue the writ.   

The motion must be disallowed.

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