Dunn v. Underwood

• Decision Date: 19 February 1895
• Citation: 20 S.E. 965,116 N.C. 525
• Court: North Carolina Supreme Court
• Parties: DUNN. v. UNDERWOOD.

20 S.E. 965

116 N.C. 525

DUNN.

v.UNDERWOOD.

Supreme Court of North Carolina.

Feb. 19, 1895.

Dismissal of Appeal—Negligence or Counsel.

Negligence of counsel is no excuse for failure of appellant to print the record.

Action by W. A. Dunn, receiver, against D. D. Underwood. Judgment for plaintiff, and defendant appealed. The appeal was dismissed, and appellant moves to reinstate. Denied.

John D. Kerr, for appellant.

R. O. Burton, for appellee.

CLARK, J. The appeal was dismissed at last term for failure to print the record. The appellant moved at the same term to reinstate, as required by rule 30 (12 S. E. viii). The reason assigned was that the neglect to print was the negligence of counsel. The court has repeatedly held that having the record printed requires no legal skill, and that, if an appellant intrusts it to counsel, his negligence in such regard is the negligence of an agent merely, not that of counsel. Griffin v. Nelson, 106 N. C. 235, 11 S. E. 414; Stephens v. Koonce, 106 N. C. 255, 11 S. E. 282; Edwards v. Henderson, 109 N. C. 83, 13 S. E. 779; Turner v. Tate, 112 N. C. 457, 17 S. E. 72; Neal v. Land Co., 12 S. E. 841, 17 S. E. 538. As the late Chief Justice Pearson expressed it, "there is no use in having a scribe, unless you cut up to it." A rule so repeatedly enunciated must be deemed settled. In Edwards v. Henderson, supra, the court observed: "To permit an appellant to obtain a delay of six months by his negligence in not complying with this requirement would convert a rule, which was adopted as a means for the speedier and better consideration of causes, into a fruitful source of delay. Rather than that, appellees would prefer to argue their causes without the printed record, which the court, in justice to itself and to litigants, cannot permit. Appellants might as well fail to send up the transcript as not to have it in a condition to be heard, by failing to have the case and exceptions printed." Indeed, in the present case, the appellee agreed that, notwithstanding the dismissal, the case might be reinstated if submitted on printed briefs, under rule 10 (12 S. E. vi.), so as to be disposed of at last term. This offer the appellant accepted, but was again negligent, and failed to do so during that term. It is too late to make the motion anew to reinstate at this term rule 30. Appellees have rights, though appellants are singularly prone to forget it, and among them is the right guarantied by Magna Charta to all, that justice shall ...