#### W. R. PERRY v. J. D. WHITAKER.

Practice — Appeal— Writ of Beeordari.

No appeal lies from the refusal of the Court below to grant amotion to'' dismiss a petition for a writ of recordari. An appeal lies from ther. order of the Court either granting or refusing to grant such writ.

(Collins v. Collins, 65 N. C. 135; Cardwell v. Cardwell, 64 N. 0. 621, cited .and approved.)

*103.P.btitioN for a Writ of Recorclari beard at- Spring Term;, 1877, of Wake Superior Court, before Buxton, J. ■

In an action heretofore had before a Justice of the Peace., in which J. D. Whitaker was plaintiff and tí. W. Perry and W. R. Perry were defendants, a judgment was rendered for plaintiff on the 21st of December, 1875. .'The plaintiff says; in his petition that he has a good defence to the notes upon which said judgment was rendered. The defendant moved to dismiss the petition. His Honor overruled the motion and ordered the defendant to answer. The defendant accordingly filed an answer, and also appealed from the judgment-of the Court in refusing to dismiss the petition.

Messrs. A. M. Lewis and J. LI. Flemming, for plaintiff.'.

Mr. Walter Clark, for defendant.

Bynum, J.

This is a petition for a writ of recordari. An appeal .lies from an order of the Judge either granting or refusing to grant the writ, but no appeal lies where the Judge has done neither the one nor the other, which is orn-ease. When the plaintiff filed his petition, the defendant moved to dismiss it, and upon the refusal of the Judge to dismiss he appealed to this Court. A refusal' to dismiss at that stage of the case was by no means the same as or equivalent to granting the writ. Before final action the Judge desired, and it was his duty, to ascertain the facts; hence he ordered the defendant to answer the allegations of the petition. The defendant did answer, notwithstanding his appeal, denying many of the allegations of the petition and thus raising questions of fact for the decision of the Court. But without awaiting the finding of the Judge upon these issues or any judgment granting or refusing the writ, and without predicating any motion, upon the petition and answer, the defendant prosecuted and relied upon his'previous appeal. The appeal was precipitate and from no appealable *104order or judgment. Whether a writ of recordad ought to have been issued depends upon the facts. No facts are found by I-Iis Honor and we cannot therefore see whether he ought or ought not to have issued the writ . But owiüg to the hasty appeal, His Honor was prevented from either finding the facts or giving a judgment granting or refusing the Tecordari. Collins v. Collins, 65 N. C. 135; Cardwell v. Cardwell, 64 N. C. 621.

If the case were properly before us and it were allowable to us to ascertain the facts from the pleadings as now presented, we should say without hesitation that there is no case made out entitling the plaintiff to the writ. But for the reasons we have given, there is nothing before us to act on and the appeal must be dismissed and the ease remauded.

Per Curiam. Appeal dismissed.