Curtis v. Southern Ry. Co.

• Decision Date: 17 December 1904
• Citation: 49 S.E. 213,137 N.C. 308
• Parties: CURTIS v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

49 S.E. 213

137 N.C. 308

CURTIS v. SOUTHERN RY. CO.

Supreme Court of North Carolina

December 17, 1904

Appeal from Superior Court, Swain County.

Action by W. A. Curtis against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Heard on motion to dismiss. Denied.

Though an appeal was not docketed seven days before the beginning of the call of a district to which it belongs, as required by court rule 5, 24 S.E. iv, if it be docketed at the first term after trial below, and before motion to dismiss, it will not be dismissed.

A. J Franklin, for appellant.

Moore & Rollins and A. B. Andrews, Jr., for appellee.

CLARK C.J.

This is a motion to dismiss this appeal (1) because not docketed seven days before beginning the call of the district to which it belongs, as required by rule 5 (24 S.E. iv); (2) because the record was not printed in the time required by rule 34 (43 S.E. v); (3) because the appellant has not printed and filed a brief in time required by rules 28 and 34 (28 S.E. v; 43 S.E. v). It is only necessary to quote what was said upon an identical motion in Benedict v. Jones, 131 N.C 474, 42 S.E. 909: "The uniform ruling of this court *** may be thus summed up: An appeal must be docketed not later than the termination of the next term of this court beginning after the trial below [[with the exceptions specified in the proviso to rule 5, 128 N.C. 634, 24 S.E. iv]. If not docketed at such term by the time required for hearing at such term the appellee may docket a certificate under rule 17 (28 S.E. v) then, and at any time during the term, if before the appellant dockets the transcript, and have the appeal dismissed. But if the appellee is dilatory, and the appellant dockets the transcript at that term, before the appellee moves to dismiss, though too late to secure a hearing, then the appeal will not be dismissed. Packing Co. v Williams, 122 N.C. 406, 29 S.E. 366; Smith v. Montague, 121 N.C. 92, 28 S.E. 137." And citing other cases.

Here the appeal was not docketed at the required time, but it was docketed at this term--the first term beginning since the trial below--and, being docketed before the appellee moved to dismiss, the latter's motion came too late. As the case consequently goes over to the next term for hearing, the record and brief are only required to be printed at next term at the specified time before the call of the district to which the appeal...