Central Hanover Bank & Trust Co. v. Cooke

• Decision Date: 26 April 1933
• Docket Number: 254.
• Citation: 169 S.E. 148,204 N.C. 566
• Parties: CENTRAL HANOVER BANK & TRUST CO. et al. v. COOKE et ux.
• Court: North Carolina Supreme Court

169 S.E. 148

204 N.C. 566

CENTRAL HANOVER BANK & TRUST CO. et al. v. COOKE et ux.

No. 254.

Supreme Court of North Carolina

April 26, 1933

Appeal from Superior Court, Franklin County; Sinclair, Judge.

Action commenced in a court of a justice of the peace by the Central Hanover Bank & Trust Company and others against F. H. Cooke and wife. Judgment was rendered for plaintiffs, and defendants gave notice of appeal to the superior court, but the appeal was not properly docketed, and defendants filed a petition for writ of recordari. From a denial of the petition for recordari, the defendants appeal.

Affirmed.

Findings of trial court that defendants were guilty of inexcusable neglect and laches in perfecting and docketing appeal from justice of peace to superior court held not inadequate.

On April 21, 1931, the plaintiffs secured a judgment against the defendants for the sum of $150 in a court of the justice of the peace. Immediately after the judgment was rendered and in open court, the defendants gave notice of appeal to the superior court and paid the justice of the peace all legal fees and all fees required for having the appeal docketed in the superior court. The defendant F. H. Cooke immediately thereafter went to the office of the clerk of the superior court of Franklin county and gave a justified bond to stay execution on said judgment, which was accepted and filed by the clerk. Execution was duly issued upon the judgment and served upon the defendants. Thereupon the defendants discovering that the appeal from the justice of the peace had never been properly docketed, filed a petition on October 21 1932, requesting a writ of recordari. The plaintiffs filed an answer to the motion and petition, and the cause was heard by the trial judge.

The justice of the peace, who tried the case in April, 1931, made an affidavit stating that the defendant paid the fees allowed him by law for sending the said appeal and the papers in connection therewith to the office of the clerk of the superior court of Franklin county, and at the same time or immediately thereafter he advised the defendants that the said appeal had been sent to the office of the clerk of the superior court. The defendant, in his petition for recordari stated that at various times he had visited the office of the clerk and had been informed that the case would be on the trial calendar. The clerk made an affidavit, stating that the defendant came to his office inquiring about the case afterwards, and that he was advised on each occasion that the appeal had not been received and had not been docketed.

The trial judge found the following facts: "That the defendants herein have been guilty of inexcusable neglect and laches in perfecting and docketing their appeal from the magistrate's judgment to the...