Mitchell v. Baker Et Ux

• Decision Date: 01 October 1901
• Citation: Mitchell v. Baker Et Ux, 39 S.E. 633, 129 N.C. 63 (N.C. 1901)
• Court: North Carolina Supreme Court
• Parties: MITCHELL . v. BAKER et ux.

39 S.E. 633

129 N.C. 63

MITCHELL .

v.BAKER et ux.

Supreme Court of North Carolina.

Oct. 1, 1901.

CERTIORARI—CASE ON APPEAL—AMENDMENT —LACHES—EXCEPTIONS.

1. Where an appeal is docketed and printed before the call of the district at a certain term, a writ of certiorari will not issue at the succeeding term for an amendment in the case on appeal on a statement from the trial judge that he is willing to make it because of laches.

2. Under Code, § 550, requiring that exceptions in the case on appeal shall be specifically stated, where there are several propositions of law involved, an exception merely "to the charge as given" will be disregarded on appeal, as too general.

Appeal from superior court Lenoir county; Allen, Judge.

Action by A. Mitchell against J. P. Baker and wife. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Shepherd & Shepherd, for appellant.

N. J. Rouse and J. H. Pou, for appellees.

CLARK, J. The appellant moves for a writ of certiorari for an amendment in the case on appeal, upon a statement from the trial judge that he is willing to make it The motion comes too late. The appeal wasdocketed and printed before the call of the district at last term, and with proper diligence the motion should have been made in time to have the case heard at last term, or at least at the call of the district at that term. It is laches to wait till this term, with the result that if allowed there would be another delay of six months. He who seeks a certiorari must negative laches. State v. Griffis, 117 N. C. 709, 23 S. E. 164; Peebles v. Braswell, 107 N. C. 68, 12 S. E. 44.

The sole exception in the case on appeal is "to the charge as given." That this is too...