Brown v. Plott

• Decision Date: 03 December 1901
• Citation: 40 S.E. 45,129 N.C. 272
• Parties: BROWN et al. v. PLOTT.
• Court: North Carolina Supreme Court

40 S.E. 45

129 N.C. 272

BROWN et al.

v.PLOTT.

Supreme Court of North Carolina.

Dec. 3, 1901.

COUNTY COMMISSIONERS—APPEAL—DOCKETING—DISMISSAL.

1. Under Code, § 2039, allowing in certain proceedings an appeal from the board of county commissioners to the superior court at term time, the words "term time" mean the next term of the appellate court; and where an order of the board of commissioners is entered on the Sth of May, and appeal bond given on the 15th, with a request that it should be sent up to the next term of the superior court on the 21st, and after two terms had passed it was discovered that the appeal had not been docketed, it should be dismissed.

2. The fact that both parties supposed an appeal in a case had been docketed, and continued it for two terms of court, does not excuse the negligence of the appellant in failing to have the case docketed.

Appeal from superior court Iredell county; Coble, Judge.

Action by G. H. Brown and others against R. C. Plott From an order of the board of commissioners, defendant appealed to the superior court From the judgment of said court refusing to dismiss such appeal for failure to docket in time, plaintiffs appeal. Reversed.

Armfield & Nattress and Armfield & Turner, for appellants.

L. C. Caldwell and Grier & Long, for appellee.

MONTGOMERY, J. On May 8, 1900, the defendant appealed from an order made by the board of commissioners of Iredell county granting certain changes in the public road over the lands of the defendant The appeal bond was given on the 15th inst, and filed with the clerk of the board by the defendant's attorneys, with a request that the appeal and bond should be sent up by him to the next term of the superior court of Iredell, which would commence on the 21st of the same month and year. No further attention was paid to the appeal by the defendant until two terms of the superior court had elapsed, when it was discovered that the appeal had not been docketed. It was then docketed, and a motion by the plaintiffs to dismiss because it had not been docketed at the May term—the term next ensuing after the appeal was taken—was refused. It was admitted by the counsel of the defendant that the plaintiffs' motion should have been allowedif the same rule as to the docketing of appeals from orders of boards of county commissioners was applicable to appeals taken from the judgments of justices of the peace. But the contention was set up that the judge of the superior court in term had the discretion, or, rather, the right, to make a rule as to when appeals from orders of the board of county commissioners to the superior court should be docketed in that court. It was argued for that contention that section 2039 of the Code, which provided for...