Opinion
June Term, 1853.
1. Appeal in this case from the order of the Superior Court, granting a writ of alternative mandamus, premature.
2. In a proceeding like this, the writ of alternative mandamus is always the first process, as distinguished from a rule.
( Vide, same case, 33 N.C. 135.)
THIS is the same case that is reported in 33 N.C. 135, and for a statement of the facts, the reporter refers to the opinion of the Court as there given.
Winston for defendants.
Strange for plaintiffs.
At ANSON, on the last Spring Circuit, his Honor, Ellis, J., awarded alternative writs of mandamus to each of the realtors, from which order the defendants prayed an appeal to the Supreme Court, which was granted.
The appeal is premature, and must be dismissed. When the case was before this Court, at June Term, 1850 (see 33 N.C. 135), it was decided that the judge in the court below erred in discharging the rule which the realtors had obtained against the defendants, calling on them to show cause why a writ of mandamus should not issue; and the judgment was reversed, and a certificate to that effect sent down, in order that the Superior Court might direct the writ to be issued.
When the case was returned to that court, the defendants were permitted again to show cause why a mandamus should not issue, the parties treating it, as if it were an application for a peremptory mandamus in the first instance. The rule indeed did call the writ required a peremptory mandamus, and the court, as well as the parties, seemed (303) to view it in that light; but the irregularity was cured by the order made by the court, that a writ of alternative mandamus should issue. To that, the realtors were clearly entitled, as had already been decided in this Court, and no appeal could be properly taken from such order. This is manifest from the consideration that the very same question is now before us as was decided on the former appeal — to wit, whether the realtors are entitled to the writ of alternative mandamus, which is always the first process, as distinguished from a rule to show cause, in a proceeding of this kind. 3 Black. Com., 111; Tapping on Mandamus, 6; 1 Rev. Stat., chap. 97, sections 3, 4, 5; Delacy v. Neuse Navigation Company, 8 N.C. 274. When the return shall be made by the defendants to the writ of alternative mandamus, such proceedings may be had that the case may be decided finally upon its merits.
The case being now improperly before us upon the appeal of the defendants, it must be dismissed at their costs, which will be certified to the Superior Court, from which the writ of alternative mandamus must issue, as heretofore ordered by that court.
PER CURIAM. Dismissed accordingly.