
    M. W. CALDWELL, and others v. DAVID PARKS.
    A petition for a public road having been carried by appeal from the County to-the Superior Court, the Judge made a decree in favor of the petitioners, md thereupon ordered a procedendo to imie to the County Court: Held, that although the latter part of this judgment was erroneous, and the court should have ordered a writ to issue from its own office, yet, inasmuch as the parties had obeyed it, and carried the case back into the County Court, tho petition was thereby discontinued; md therefore, that after several years of other unsuccessful litigation in the cause had occurred in both courts, the petitioners could not resort to thejudgment above mentioned, and move for an order to summon a jury, and lay out the road.
    (Tile case of Shoffner v. Fogleman, Bus. 280, cited and approved.)
    Petition, for a public road, filed at October Term, 1856y of Mecklenburg County Court. After a judgment in that court the case was carried to the Superior Court, iu which at Fall Term, 1858, another judgment in favor of the petitioners was made, and a procedendo awarded to- the County Court. By virtue of said procedendo- the County Court issued a writ to the sheriff, and under an: alias thereof a report was filed at October .Term, 1859, but set aside by the-court. Another report was filed and set aside at April 'Term, I860-, an-d- still another at October Term, 1860-From this last order an appeal was taken to the Superior Court. At Fall Term, 1863, of tbe Superior Court, tbe appeal was dismissed. At January Term, 1863, of the County Court, a motion was made “ to amend the record in this case by bringing it forward from October Term, I860, and reinstating it upon the trial docket of the present term, and to order another jury to lay off said road prayed for in the petition,” &c., which motion was disallowed. From this .order the petitioners appealed again to the Superior Court, and at Fall Term, 1863, a certiorari was ordered, and the case at that term, and again at Fall Term, 1864, continued.
    At Spring Term, 1866, the petitioners moved before Mitchell, J., that a writ issue to lay off the road as prayed for ; and such motion was disallowed. Thereupon the petitioners appealed to this court.
    
      Boy dm and Bailey, for the petitioners.
    
      Wilson, for the defendants.
   Battle, J.

We concur in the opinion expressed by his Honor, that the petitioners were not entitled to have a writ issued to .the sheriff, for the purpose of having a public road laid off as prayed for in their petition. The motion for the writ was founded upon the judgment given at the Fall Term of the Superior Court in the year 1858. The counsel for the petitioners have misapprehended the effect of that judgment, when taken in connection with the proceedings which were had under it. A part of the judgment was, that a writ of procedendo should issue to the County Court, which was accordingly done. This was erroneous, as the Superior Court ought to have proceeded to direct a writ to be issued from its own office. Shoffner v. Fogleman, Bus., 280. Erroneous though, it were, no objection seems to have been made to it. On the contrary, the parties followed the cause Jo the County Court; pursued it for several years in that court; took it again to the Superior Court by appeal, and upon its being dismissed, followed it a second time to the County Court, and brought it again to the Superior Court by another appeal. Tired of this chase, the counsel for the petitioners have gone back to that p^,rt of ihe judgment of Fall Term, 1858, which ordered the laying out of the public road, and have based their motion for a writ on that order. Unfortunately for them, the effect of the writ of procedendo was, at least, to discontinue the suit in the Superior Court. The parties were, for the time, out of the Superior Court, and if the case could have been reinstated in that court, in statu quo, at all, it must have been done by proceedings adopted for that very purpose. The petitioners certainly did not attain that end when they last brought the cause to the Superior Court by appeal. For that however they do not contend, their action being founded altogether upon the idea, that the judgment, at Fall Term, 1858, is still a subsisting, valid judgment. Believing that view to be erroneous, we feel, bound to affirm the order of the Superior Court.

Per Curiam. Order affirmed.  