Ray v. . Ray

There is no error. Judgment for the costs of the County Court ought not to have been rendered in the Superior Court, because it was repugnant and inconsistent with the fact that there was no right of appeal, and of course no case constituted in that court.

After the appeal to this Court, upon the question as to the costs of the County Court, it was clearly right to refuse to grant a procedendo, because thereby the County Court would have been called upon to give a judgment as to the costs of that court, whereas the appeal assumed that that judgment ought to have been rendered in the Superior Court, and it was repugnant and inconsistent pending an appeal which was taken to try the question whether the Superior Court ought not to have given the judgment to move for a procedendo, under which the (26) County Court must have given it.

Another view may be taken of the question. If the Superior Court refuses to obey the mandate of this Court, the counsel is not to appeal, for there is no question to be reviewed, but to apply for a mandamus. In this case the refusal is accounted for and explained by the fact of the appeal as to the question of costs, pending which the procedendo ought *Page 30 not to have been sent, for thereby the case would have been split up and put in two courts at the same time.

PER CURIAM. Affirmed.

Cited: Murrill v. Murrill, 90 N.C. 124; Tussey v. Owen, 147 N.C. 338.