Calvert v. Carstarphen

• Decision Date: 22 September 1903
• Citation: 45 S.E. 353,133 N.C. 26
• Parties: CALVERT. v. CARSTARPHEN et al.
• Court: North Carolina Supreme Court

45 S.E. 353

133 N.C. 26

CALVERT.

v.CARSTARPHEN et al.

Supreme Court of North Carolina.

Sept. 22, 1903.

APPEAL—DISMISSAL—REINSTATEMENT— FILING BRIEF.

1. Under Sup. Ct. Rule 34 (131 N. C. 831, 43 S. E. v.), providing that, if appellant's brief is not filed by 10 a. m. on Tuesday of the week preceding the call of the district to which the cause belongs, the appeal will be dismissed, on motion, when the call is begun, unless, for good cause shown, the court shall give further time to print a brief, though the transcript was not docketed till the Saturday preceding the Tuesday on which the brief should have been filed, yet, it not being clear that a brief could not be printed in one or two days, and the printing of the brief below being allowed by rule 32, and appellant not having moved during the week preceding the call for longer time in which to print the brief, and not having had it printed at the time of the call, when the appeal was dismissed, and then shown cause why he should not be allowed to file it, and negatived laches, his subsequent motion to reinstate will not be granted. Douglas, J., dissenting.

Action by J. C. Calvert against J. R. Car-starphen and others. Plaintiff's appeal from a judgment for defendants was dismissed, and he moves to reinstate it. Denied.

S. J. Calvert, for appellant.

Peebles & Harris and Gay & Midyette, for appellees.

CLARK, C. J. The transcript on appeal was docketed 29th August. The appeal coming from the Second District, the call of which began 8th September, the appellant should have filed his printed brief by 10 a. m. 1st September—rule 34 (131 N. C. 831, 43 S. E. v.), under the penalty therein prescribed, that, on failure to do so, "the appeal will be dismissed on motion of appellee, when the call of that district is begun, unless for good cause shown, the court shall give further time to print brief." The motion to dismiss was made by appellee at the beginning of the call of the Second District, 8th September; and no printed brief for appellant being on file, and no cause for further time being shown, the appeal was dismissed. On 10th September the appellant moved to reinstate the appeal. The appellant bases his motion on the ground that there was not sufficient time to print the brief between the filing of the record on Saturday, 29th August, and 10 a. m. Tuesday, 1st September, the date specified in the rule. It is by no means clear that a brief could not be printed in one or two days. Besides, as rule 32 suggests (131 N. C. 831, 43 S. E v.), the brief might be printed below, and sent up with the transcript, for the appellant should certainly know the grounds of his own exceptions; and when the record is printed late, as in this case, the reference in the brief to the paging of the printed record could be left blank, and filled in with a pen before the call of the district to which the appeal belongs. Then, too, if the appellant had cause, he should have moved the court on 1st September, or some day during that week, for longer time in which to print a brief. Certainly, when the motion to dismiss for want of a printed brief was made at the beginning of the call of the district, 8th September, he should then have had his printed brief ready, and have shown cause why he should be allowed to file it, and have negatived laches. Pipkin v. Green, 112 N. C. 355, 17 S. E. 534. "A motion to reinstate will not be allowed on an excuse which should have been set up in answer to the motion to dismiss." Paine v. Cureton, 114 N. C. 606, 19 S. E. 631; Johnston v. Whitehead, 109 N. C. 207, 13 S. E. 731. It has been repeatedly held that, when an appeal has been dismissed for failure to print the record, a motion to reinstate willnot be allowed on the ground that the failure to print was the neglect of counsel. Neal v. Land Co., 112 N. C. 841, 17 S. E. 538; Dunn v. Underwood, 116 N. C. 525, 20 S. E. 965; Wiley v. Mining Co., 117 N. C. 490, 23 S. E. 448. And there are other cases all to the same purport. Printing the brief, like printing the record, is the duty of the client; and as to that matter his counsel, if charged with that duty, is merely his agent in fact, and the neglect of such agent is the neglect of the client. Edwards v. Henderson, 109 N. C. 83, 13 S. E. 779; Griffin v. Nelson, 106 N. C. 235, 11 S. E. 414. It is true, counsel must prepare the brief, and so they must also attend to settling the "case on appeal" and the trial below; but if they neglect those duties the client bears the penalty, and not the opposite party, and must look for compensation to his counsel. The dismissal is for failure to print the brief, or the record, as the case may be, and not for failure to...