Cooper v. Board of Com'rs of Franklin County

• Decision Date: 20 September 1922
• Docket Number: 259.
• Parties: COOPER ET AL. v. BOARD OF COM'RS OF FRANKLIN COUNTY.
• Court: North Carolina Supreme Court

113 S.E. 569

184 N.C. 615

COOPER ET AL. v. BOARD OF COM'RS OF FRANKLIN COUNTY.

No. 259.

Supreme Court of North Carolina

September 20, 1922

On petition for rehearing. Petition dismissed.

For former opinion, see 183 N.C. 231, 111 S.E. 521.

PER CURIAM.

When the petition to rehear was filed, the justices to whom it was referred submitted it to the consideration of the court in conference. McGeorge v. Nicola, 173 N.C. 733, 92 S.E. 610. The opinion in the instant case was filed on the 29th day of March, 1922, and the petition to rehear on September 16, 1922. The petitioners rely upon the provision of section 1419 of the Consolidated Statutes as to the time within which a petition for rehearing may be filed; this section apparently extending the time 20 days after the commencement of the term succeeding that in which the opinion is filed. The rules of practice in the Supreme Court expressly require petitions for rehearing to be filed within 40 days after the filing of the opinion in the case. 174 N.C 841, 95 S.E. vii, rule 52. In Lee v. Baird, 146 N.C 363, 59 S.E. 876, Hoke, J., said:

"There is no doubt of the power of the court to establish the rules in question, and in numbers of decisions we have expressed an opinion both of their necessity and binding force. Thus, in Walker v. Scott, 102 N.C. 490 Merrimon, J., for the court, said: 'The impression seems to prevail, to some extent, that the rules of practice prescribed by this court are merely directory--that they may be ignored, disregarded and suspended almost as of course. This is a serious mistake. The court has ample authority to make them. Const. art. 4 § 12; Code, § 691; Rencher v. Anderson, 93 N.C. 105; Barnes v. Easton, 98 N.C. 116. They are deemed essential to the protection of the rights of litigants and the due administration of justice. They have force, and the court will certainly see that they have effect and are duly observed whenever they properly apply.' And in Horton v. Green, 104 N.C. 403, the present Chief Justice, in speaking of one of our rules of practice, said: 'We have stated this much to show the reasonableness and necessity of the rule, for the power of the court to make it is as clear as that it is our duty to rigidly adhere to it after it is adopted, and enforce it impartially as to all cases coming under its operation. The late Chief Justice Pearson was accustomed to say of the rules of court: "There is no use in having a scribe unless you cut up to it." ' And

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