Craddock v. Barnes

• Citation: 53 S.E. 239,140 N.C. 427
• Parties: CRADDOCK v. BARNES et al.
• Decision Date: 27 February 1906
• Court: United States State Supreme Court of North Carolina

53 S.E. 239

140 N.C. 427

CRADDOCK v. BARNES et al.

Supreme Court of North Carolina

February 27, 1906

Appeal from Superior Court, Washington County.

Action by H. D. Craddock against Priscilla Barnes and others. On motion to dismiss appeal. Denied.

An appeal not docketed seven days before the call of the district to which it belonged, as required by Supreme Court rule 5 (28 S.E. v), will not be dismissed when docketed at the next term of the Supreme Court after the trial below, if the appellee does not file his motion to dismiss on appellant's failure to so docket the appeal and before the case is actually docketed by appellant.

Aydlett & Ehringhaus, for appellant.

W. M Bond and H. S. Ward, for appellee.

PER CURIAM.

This case, from the First district, was tried below last fall and was docketed here three days before the district was called at the opening of this term. The appellee moved on the first day of this term to dismiss the appeal, because not docketed seven days before the call of the district, as required by rule 5 (28 S.E. v). We have held that, though the appeal is not docketed seven days before the call of the district to which it belongs, it will not be dismissed (when docketed at the next term here after the trial below) if it is docketed before the motion is made to dismiss. Curtis v Railroad, 137 N.C. 308, 49 S.E. 213; Benedict v Jones, 131 N.C. 474, 42 S.E. 909, and other cases there cited. The appellee contends that these decisions ought not to apply to the First district, because, if they do, an appellant from that district can always obtain six months' delay by docketing later than seven days before the call of the district and thus the case will not stand for hearing at this term, and yet the appellee cannot move to docket and dismiss if the appeal is docketed before court meets for this term, since, court not being in session till the day the call of the First district begins, the appellee will have no opportunity to move to dismiss till after the appeal is docketed.

There would be great force in this suggestion but for the fact that if the appeal is not docketed seven days before the call of the district to which it belongs the appellee can file his motion to dismiss with the clerk, whether the court is in session or not. He need not file it in open court. This is true of any district. When the call of the district begins the motion should then be called to our...