The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-10-11
THE COURT GRANTS
WRIT OF. CERT|ORAR|
In the Hygienic Ice Com
pany Case.
GROUNDS OF DECISION
RAILROAD NOT RESPONSIBLE
FOR NEGLIGENCE OF ATToR-
NEYS.
GROUNDS OF DECISION
AND THE WRIT WAS ITS ONLY REDRESS
Case Will Be Heard on Its Merits Next Week
When Other Cases from the Fourth Dis
trict Are Called. Schedule of
Opinions and Cases.

The Supreme court yesterday handed
down an opinion in the case of the Hy-
gienic Plate Ice Company VS.. the Raj
eigh and Augusta Air Line Railroad
Company, granfing the writ Of certiorari
asked for by defendant. The grounds
upon which the writ was issued by
the court, briefly stated, were that the
defendant had not been guilty of negli-
gence himself and as his attorneys were
lnSolvent and damages could not be
recovered from them, the only relief lay
through the writ of certiorari. The case
will doubtless he called next week along
with other eases from the Fourth dis
trict. In order to be prepared for event
ualiticS the case is already prepared on
both sides and a hearing before the SUI
preme court on its merits will not be
delayed
The opinion of the court was handed
down by Judge Furches; there was no
dissenting opinion.
The opinion cites that action in the
case was begun on October u, 1891,
plaintiff urging that defendant had burn
ed his ice factory through negligence
and defendant urging that plaintiff was
guilty of contributory negligence. The
action was tried at the April term OF
1899, and plaintiff was awarded $20,-
600 damage by the Superior court. The
case was appealed and forty days al
lowed appellant to make up his case.
The case was not served on appeal
in the time allowed and defendant
refused TO accept service of appeal.
Plaintiff thereupon applied to the Judge
of the Superior court to settle the case
on appeal, but the judge held that upon
the state Of facts he had no power to
grant the request. Upon the opening
of the Supreme court the defendant
filed a petition for writ of certiorari
sworn to by E. st. John, yice-president
of the defendant company, and MacRae
x Day counsel.
The opinion then cites that the de-
PENDANT company had employed three
reputable lawyers, w. H. Day, J. G.
MacIsae and j. .B. Batchelor TO attend
to the action on appeal and t1iat the
necessary steps had been taken in good
faith to obtain a new trial; that it had
10 intention of abandoning the appeal;
that all three attorneys are ins0lvent
and defendant is without redress or
remedy except by the writ of certiorari
The opinion further cites the conten-
tions of parties, that it was agreed that
j. G. MacRae was to prepare the case
that w. III. Day was elected to public
office and j. B. Batchelor was only
consulting counsel: that J. G. MacRae
was sick for a part of the time and the
reply of plaintiff to these allegations
that J. b. Bachelor was more than
a consulting counsel, that w. III. Day
continued his practice Of law and that
j. G. MacRae was able TO be in his
office for a good part OF the forty days.
Defendant alleged that he had not
been guilty of negligence. The court
says:
IF this is so. the question presented
is this: Will the negligence of defend
ants attorneys be charged to defendant
and prevent the issuance of the writ
or will the writ issue Notwithstanding
the negligence of its attorneysY' The
court declines to assent to plaintiffs con-
tention that defendant should have
served the case ,on appeal after his