Benedict v. Jones

• Decision Date: 09 December 1902
• Citation: 131 N.C. 473,42 S.E. 909
• Court: North Carolina Supreme Court
• Parties: BENEDICT. v. JONES et al.

42 S.E. 909

131 N.C. 473

BENEDICT.

v.JONES et al.

Supreme Court of North Carolina.

Dec. 9. 1902.

APPEAL—DISMISSAL—DOCKETING TRANSCRIPT.

1. Under Sup. Ct. Rule 5 (39 S. E. v), providing that the transcript on appeal shall be docketed seven days before the call of the district to which it belongs, and rule 17 (30 S. E. vi). providing that, if appellant fails to so docket it, appellee may docket a certificate, and have the appeal dismissed, the appeal will not be dismissed, though the transcript is docketed later, too late lor a hearing at that term, it having been docketed before docketing of the certificate and motion to dismiss.

Appeal from superior court, Buncombe county.

Action by Mary E. Benedict, executrix, against H. C. Jones and others. Judgment for plaintiff, and defendants appealed. Plaintiff moves to dismiss appeal. Motion denied.

Plaintiff (appellee) moves to dismiss the appeal, for that it appears from the record that the case was tried and final judgment entered at May term, 1902, of the superior court of Buncombe county, and that the countercase on appeal was served on defendants' (appellants') counsel July 31, 1902; and that, independent of such date, the appellee says it was the duty of appellants' counsel to file the transcript in time for the appeal to be heard at the present term of the supreme court, but that the transcript was not filed until November 26, 1902, too late, under the rule, for the appeal to be determined at this term; and asks that the appeal be dismissed.

P. H. Busbee, for appellee.

CLARK, J. The case was tried below in May, 1902, and the transcript was docketed here November 26, 1902, which was too late to permit of the appeal being argued at this term, it being within less than seven days before the call of the district to which it belongs. Rule 5, 128 N. C. 634, 39 S. E. v. After it was docketed, the appellee moved to dismiss. This was too late. Rollins v. Love, 97 N. C. 210, 2 S. E. 166; Barbee v. Green, 91 N. C. 158. The uniform rnling of this court has been in accord with the above decisions, and may be thus summed up: An appeal must be docketed not later than the termination of the next term of this court beginning after the trial below (with the exceptions specified in the proviso to rule 5, 128 N. C. 634, 39 S. E. v.). If not docketed at such term by the time required for hearing at such term, the appellee may docket a certificate under rule 17, 128 N. C. 638, 39 S. E. vi. then, or at any time during the term, If before the appellant dockets the transcript, and have the appeal dismissed. But if the appellee is dilatory, and the appellant dock ets the transcript at that term, before the appellee moves to dismiss, though too late to secure a hearing, then the appeal will not be dismissed. Packing Co. v. Williams, 122 N. C. 406, 29 N. E. 366; Smith v. Montague, 121 N. C. 92, 28 S. E. 137; Speller v. Speller, 119 N. C. 356, 26 S. E. 160; Haynes v. Coward, 116 N. C. 840, 21 S. E. 690; Paine v. Cureton, 114 N. C. 606, 19 S. E. 631; Triplett v. Foster, 113 N. C. 389, 18 S. E. 714. There have been changes, as will be seen by the above cases, as to the time during such next term by which an appeal must be docketed to secure a hearing at that" term. Originally, it must have been docketed "during the call of the docket of the district to which the appeal...