Howard v. Speight

• Decision Date: 15 September 1920
• Docket Number: 65.
• Citation: 104 S.E. 35,180 N.C. 653
• Parties: HOWARD ET AL. v. SPEIGHT ET UX.
• Court: North Carolina Supreme Court

104 S.E. 35

180 N.C. 653

HOWARD ET AL. v. SPEIGHT ET UX.

No. 65.

Supreme Court of North Carolina

September 15, 1920

Appeal from Superior Court, Edgecombe County; Devin, Judge.

Action for petition by W. O. Howard and others against James E Speight and wife. From judgment for plaintiffs, defendants appeal. On motion to dismiss. Appeal dismissed.

Under rule 5 of the Supreme Court, 81 S.E. vii, appeals in causes tried before the commencement of a term of the court must be docketed at such term seven days before entering the call of the docket of the district to which they belong, and stand in their order for argument; if not docketed in such time appellee may docket the certificate under rule 17, 81 S.E ix, and have the appeal dismissed; if the appellant does not do this, and the appeal is docketed at such term of the Supreme Court which begins next after trial below, but after the perusal of the district to which it belongs, appellee cannot then move to dismiss, but his negligence to move to docket and dismiss extends no further, and if the appeal is docketed at a term of the Supreme Court after the one at which it is required to be filed, it will be dismissed on motion.

If failure to docket appeal at the term required by rule 5 of the Supreme Court (81 S.E. vii) is due to the negligence of counsel, appellant is not protected from dismissal, as he should apply for certiorari when the particular district was called at such term.

This was an action for partition at November term, 1919, of Edgecombe. By consent, the cause was heard at chambers December 15, 1919, and notice of appeal given; bond being fixed at $50. The "case on appeal" was settled by the judge January 9, 1920. The appeal was not docketed here at spring term, nor until August 3, 1920. At the beginning of the call of the district at this term, the appellee moved to dismiss, because not docketed at the spring term, as required by rule 5 of this court (81 S.E. vii).

F. C. Harding and L. W. Gaylord, both of Greenville, and R. W. Winston, of Raleigh, for appellants.

W. O. Howard and Jas. Pender, both of Tarboro, for appellees.

PER CURIAM.

The motion to dismiss must be allowed. Rules 5 and 16 of this court (174 N.C. 828, 831, 81 S.E. vii, ix). The settled practice of this court under the above rules is thus summarized in Porter v. Railroad, 106 N.C. 479, 11 S.E. 515:

1. Appeals in causes tried before the commencement of a term of this court must be docketed (as the rule now stands) "at such term, seven days before entering the call of the docket of the district to which they belong and stand in their order for argument."

2. If not docketed in such time, the appellee may docket the certificate under rule 17 (81 S.E. ix) and have the appeal dismissed.

3. If the appellant does not do this, and the appeal is docketed at such term of this court, which begins next after trial below, but after the perusal of the district to which it belongs, the appellee cannot then move to dismiss. Bryan v. Moring, 99 N.C. 16, 5 S.E. 739. But the neglect of the appellee to move to docket and dismiss extends no further, and if the appeal is docketed at a term of this court after the one at which it is required to be filed, the appeal will be dismissed on motion.

In Porter v. Railroad, supra, and in other cases since, the appellant has insisted, as in this case, as the appellee did not move to docket and dismiss when the district was called at the term of this court beginning next after the trial below, that this was a waiver, and the appellant could docket at this term. This was expressly overruled in Porter v Railroad, in Hinton v. Pritchard, 108 N.C. 412, 12 S.E. 838, and in four other cases at that term, and in every case since. In Johnston v. Whitehead, 109 N.C. 209 13 S.E. 731, the court says in addition that, if the appellant had lost his appeal without negligence on his part, it was his duty to apply for a certiorari at or before the time the appeal should have been docketed--i. e., at the first term after the trial below--and that, not having done so, such application cannot be made at this term, and also that when the appeal was docketed at this term no notice of a motion to dismiss is...