rejecting use of certiorari to accomplish indirectly what statute -2- IN RE: D.J. Opinion of the Court does not permit directly
How later courts described this case
- rejecting use of certiorari to accomplish indirectly what statute -2- IN RE: D.J. Opinion of the Court does not permit directly
Written by the judges who cited it.
The opinion
Stacy, C. J.
The State contends that under the showing made,
Crane v. Carswell,
204 N. C., 571 , 169 S. E., 160 , and at the time of the hearing,
Riddle v. Honbarrier,
212 N. C., 528 , 193 S. E., 721 , the Superior
*777
Court was without authority to entertain, the motion or to grant the relief sought. The defendant contends otherwise.
S. v. Edwards,
205 N. C., 661 , 172 S. E., 399 ;
S. v. Casey, supra.
However this may be, we are precluded from passing upon the merits of the matter, because the State has no right of appeal in the circumstances disclosed by the record.
8. v. McCollum,
216 N. C., 737 , 6 S. E. (2d), 503 ;
8. v. Lea,
203 N. C., 316 , 166 S. E., 292 . It is provided by G-. S., 15-179, that an appeal to this Court may be taken by the State in four specific instances, naming them, “and no other.”
S. v. Branner,
149 N. C., 559 , 63 S. E., 169 . Admittedly, the present case falls within the “and no other” of the statute, albeit the State seeks to present only a question of law.
We
have then a matter which comes within the inhibition of the statute, rather than within its grant. A similar situation arose in the case of
S. v. Davidson
(1899), 124 N. C., 839 , 32 S. E., 957 , where it was said that perhaps instances involving only questions of law were omitted from the statute by inadvertence, but the statute is the same today as it was then. “A judicial inquiry is one which investigates, declares and carries out existing
law”
— Brown,
J.,
in
Hudson v. McArthur,
152 N. C., 445 (loe. cit. 454), 67 S. E., 995 .
Nor is the situation saved by the application for
certiorari. S. v. 8wepson,
82 N. C., 541 . To bring up the matter in this way would be to accomplish by indirection what the statute expressly forbids. The case is not one in which the alleged error appears on the face of the record proper, which might be corrected in our supervisory power, Const., Art. IY, sec. 8,
S. v. Lawrence,
81 N. C., 522 , but it is to review a ruling of the court entered on motion after trial.
Alexander v. Cedar Works,
177 N. C., 536 , 98 S. E., 780 . This would require a
"postea
or
case
to be made up.”
Ex parte Biggs,
64 N. C., 202 ;
8. v. Moore,
210 N. 0., 686, 188 S. E., 421 .
It results, therefore, since the case is one in which the State has no right of appeal, a dismissal must, necessarily follow.
S. v. Tripp,
168 N. C., 150 , 83 S. E., 630 . “As no appeal lay, a
certiorari
as a substitute therefor cannot be granted.”
Guilford v. Georgia Co.,
109 N. 0., 310, 13 S. E., 861 .
Appeal dismissed.
Certiorari
denied.