#### A. E. STEWART v. BANKS CRAVEN.

(Filed 22 November, 1933.)

Appeal and Error A d—

No appeal lies from tbe refusal of tbe Superior Court to set aside a writ of recordari granted in tbe cause.

Appeal by plaintiff from Granmer, J., at Chambers, 18 April, 1933. From Wake.

Appeal dismissed.

H. L. Swam for plaintiff.

J. A. Thebault for defendant.

*440ClarksoN, J.

Upon petition of defendant in due form, tbe court below issued a writ of recordari, as a substitute for an appeal, to tbe justice of tbe peace wbo tried tbe action. No exception was entered to tbe granting of tbis writ. The order appealed from to this Court is as follows:

“Tbis cause coming on to be beard on tbis 18 April, 1933, in chambers before bis Honor, Judge E. H. Cramner, one of tbe judges bolding court for tbe Seventh Judicial District of North Carolina at Raleigh, North Carolina, and being beard upon motion filed by plaintiff for tbe purpose of setting aside a writ of recordari granted in tbis cause on . March, 1933, and being beard upon said petition and motion filed therein; tbe court finds tbe following facts:

1. That at 4:00 p.m., on 17 December, 1933, a judgment was rendered against tbe defendant without having bad an opportunity to present bis defense, that tbe defendant appeared for trial at 4:15 p.m., that a justice of tbe peace therein presiding did not allow tbe defendant to be beard, because be was too late, in spite of tbe fact that all of tbe said defendant’s witnesses were present, that be did not reopen tbe case.

2. That tbe court further finds as a fact that tbe defendant is an ignorant Negro, that be is not guilty of laches and that be made his motion for a writ of r&corclari within tbe time allowed by law and has a meritorious defense.

It is therefore, on motion of J. A. Thebault, attorney for tbe defendant, considered, ordered and adjudged and decreed that tbe plaintiff’s motion to set aside tbe writ of recordari granted in tbis cause, be, and tbe same is hereby denied and dismissed. That' tbe defendant go hence without day and recover bis costs.”

Tbe recordari was therefore granted and tbis appeal is made by plaintiff from a motion to set aside tbe writ of recordari.

It was held in Perry v. Whitaker, 11 N. C., 102: No appeal lies from tbe refusal of tbe court below to grant a motion to dismiss a petition for a writ of recordari. At p. 104, it is said: “Whether a writ of recordari ought to have been issued depends upon tbe facts.” Barnes v. Easton, 98 N. C., 116.

In Merrell v. McHone, 126 N. C., 528 (529), we find: “At tbe first term of tbe Superior Court, an affidavit and petition for recordari were filed, and an order for tbe recordari issued. Not being obeyed, an alias issued, and on its return tbe plaintiff moved to dismiss, which was refused. No appeal lay from such refusal (Perry v. Whitaker, 77 N. C., 102), and it was properly entered as an exception. Tbe final judgment being against tbe plaintiff, it now comes up for review. Had the final judgment been in favor of the plaintiff, tbe exception would *441then have become immaterial, and an appeal unnecessary.” Hunter v. R. R., 161 N. C., 503; Bargain House v. Jefferson, 180 N. C., 32; See N. C. Code of 3931 (Micbie), section 630, and cases cited.

From tbe record tbe action is in tbe Superior Court for trial die novo. We observe tbe motion was made at Chambers, but no point seems to be made of this.

Appeal dismissed.