Ballard v. Gay

• Decision Date: 05 May 1891
• Citation: 13 S.E. 207,108 N.C. 544
• Court: North Carolina Supreme Court
• Parties: Ballard et al. v. Gay et al.

13 S.E. 207

108 N.C. 544

Ballard et al.

v.Gay et al.

Supreme Court of North Carolina.

May 5, 1891.

Appeal from Justices' Courts—Dismissal.

Code N. C. § 565, provides that appeals from justices of the peace shall stand for trial de novo on the dockets of the superior courts at the first term after the appeal is taken, and that, if defendant should make default, judgment should be rendered against him, final in some cases, and by default and inquiry in others. By an amendatory act (Laws 1889, c. 443) it is further provided that where the appellant failed to have his appeal docketed at the next term the appellee might file a transcript of the justice's record, and move to dismiss. Held, that where defendant failed to docket his appeal at the next term, but did so at the second term, when plaintiff, upon defendant's failure to appear, took judgment by default against him, which was subsequently set aside on the ground that his failure to appear was excusable negligence, plaintiff was still entitled to move for a dismissal for failure to docket the appeal in time.

Appeal from superior court, Durham county; MacKae, Judge.

This was a motion to dismiss an appeal from the judgment of a justice of the peace.

J. S. Manning and Boone & Parker, for appellants.

Fuller & Fuller, for appellees.

Avery, J. The judge below heard at the October term of the court two motions. First, upon motion of the defendants, supported by numerous affidavits, he ordered that a judgment by default, entered against them at the previous June term, be vacated, on the ground that the failure to enter an appearance at last-named term was excusable neglect. So soon as the appeal was reinstated upon the docket by this judgment, and counsel had appeared for defendants, the plaintiffs moved the court to dismiss the appeal for failure of the defendants to cause it to be docketed before the term of the superior court next after the trial in the court of the justice of the peace. The plain purpose of the legislature, as manifested in the statute, (Code, § 565,) was to expedite the disposition of appeals from the courts of justices of the peace, by providing that they should stand for trial de novo on the dockets of the superior courts at the first term after the appeal should be taken; that if both parties should ap pear, judgment should be rendered against the party cast; and that, where the defendant should make default, the judgment in certain classes of cases should be final, and in other actions by default and inquiry "to be executed forthwith by a jury." This section was subsequently so amended (Laws 1889, c. 443) that where the party appealing should fail to cause his appeal to be docketed before the next term of the superior court, the opposing party should have the right to procure a transcript of the justice's record, docket it, and move to dismiss the appeal at said term. The amendment seems to have been enacted in furtherance of the same purpose to prevent unnecessary delay in disposing of these causes involving small...