Caudle v. Morris
| Decision Date | 20 March 1912 |
| Citation | 74 S.E. 98,158 N.C. 594 |
| Court | North Carolina Supreme Court |
| Parties | CAUDLE et al. v. MORRIS et al. |
Action by W. H. T. Caudle and others against Mollie Morris and others. From the judgment, both parties appeal. On defendants' motion to reinstate their appeal. Motion denied.
R. C. Strong, for plaintiffs.
Douglass, Lyon & Douglass and R. N. Simms, for defendants.
[1] In the plaintiffs' appeal, the appellant docketed the record prop er in apt time, and asked for a certiorari that the case on appeal may be settled and sent up. It appearing that the judge had failed to settle the case without any laches on the part of the appellant, the certiorari will issue.
In the defendants' appeal, the plaintiffs docketed in apt time the certificate required under rule 17 (66 S. E. vii), and moved to dismiss defendants' appeal. The motion was granted. The defendants thereupon moved to reinstate. It appears that the defendants had not docketed the record proper, but they ask for a certiorari, and seek to excuse their failure to comply with the rule by the fact that the plaintiffs had docketed their record proper; but they cannot excuse their own negligence by relying upon the diligence of the plaintiff. In Jones v. Hoggard. 107 N. C. 349, 12 S. E. 286, it is said: — citing Perry v. Adams, 96 N. C. 347. 2 S. E. 659, which cites Devereux v. Burgwin, 33 N. C. 490; Morrison v. Cornelius, 63 N. C. 346. Jones v. Hoggard has been cited and approved in State v. Bost. 125 N. C. 711, 34 S. E. 650, Mills v. Guaranty Co., 136 N. C. 256, 48 S. E. 652, Bank v. Bobbitt, 108 N. C. 525, 13 S. E. 177, and in many other cases. If opposite counsel, by consent, cannot waive the record when both sides appeal, certainly the court cannot dispense with it when the opposite counsel are here relying upon the failure of the defendants to file their record. As this court has often held, an appeal is not a matter of absolute right; but the appellant must comply with the statutes and rules of court as to the time and manner of taking and perfecting his appeal. Just as the right of action is not an absolute one; but a plaintiff must comply with the regulations of orderly procedure by issuing his summons in the statutory time and having it served and filing his complaint in the time and manner prescribed, and observing in other respects the requirements as to procedure.
The rule of procedure is well settled that, when the appeal is not docketed at or before the time...
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Veazey v. City of Durham, 743
...the appeal. Goodman v. Call, 185 N.C. 607, 116 S.E. 724; Lindsey v. Knights of Honor, 172 N.C. 818, 90 S.E. 1013; Caudle v. Morris, 158 N.C. 594, 74 S.E. 98. But in cases where no appeal is given by law, the right of appeal does not exist, and can not be exercised. In re Stiers, 204 N.C. 48......
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Dare County v. North Carolina Dept. of Ins.
...Security Com., 234 N.C. 651, 68 S.E.2d 311 (1951) (citing Cox v. Kinston, 217 N.C. 391, 8 S.E.2d 252 (1940)); Caudle v. Morris, 158 N.C. 594, 74 S.E. 98 (1912); Brown v. Kress & Co., 207 N.C. 722, 178 S.E. 248 (1935); Vivian v. Mitchell, 144 N.C. 472, 57 S.E. 167 (1907); Lindsey v. Knights ......
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Cox v. City of Kinston
... ... 365, 174 N.E. 812. It is a privilege ... granted by statute. MacCartney v. Shipherd, 60 Or ... 133, 117 P. 814, Ann.Cas.1913D, 1257; Caudle v ... Morris, 158 N.C. 594, 74 S.E. 98; Hawkins v. Western ... Union Telegraph Co., 166 N.C. 213, 81 S.E. 161. Compare: ... Windsor v. McVay, 206 ... ...
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State ex rel. Employment Sec. Commission, In re, 609
...A.J. 670, sec. 232. Obviously then, the appeal must conform to the statute granting the right and regulating the procedure. Caudle v. Morris, 158 N.C. 594, 74 S.E. 98. The statutory requirements are mandatory and not directory. Brown v. S. H. Kress & Co., 207 N.C. 722, 178 S.E. 248. They ar......