Peebles v. Braswell

• Decision Date: 20 October 1890
• Citation: 12 S.E. 44,107 N.C. 68
• Parties: PEEBLES v. BRASWELL.
• Court: North Carolina Supreme Court

12 S.E. 44

107 N.C. 68

PEEBLES v. BRASWELL.

Supreme Court of North Carolina

October 20, 1890

Motion for certiorari.

An application for a certiorari to a judge to settle a case on appeal, made seven months after the appeal was taken, will be denied, in the absence of an affidavit to negative laches.

Gillian & Son, for appellant.

J. E Moore, for appellee.

CLARK J.

There is no case on appeal settled by the judge, nor case agreed upon by counsel. There is a case on appeal signed only by appellant's counsel, but nothing to show that it was served within the time, or indeed ever at all, upon appellee or his counsel. This, it has been held, cannot be considered. Manufacturing Co. v. Simmons, 97 N.C. 89, 1 S.E Rep. 923.

The appellant now asks for a certiorari, but there is no affidavit to negative laches on the part of the appellant and, so far as the application is to be construed as being for certiorari to the judge to settle the case, it must be denied. Simmons v. Andrews, 106 N.C. 201, 10 S.E Rep. 1052, and cases there cited. It is true, the absence of any case on appeal does not of itself entitle the appellee to have the appeal dismissed, as there may be error apparent upon the face of the record proper. Manufacturing Co. v Simmons, supra. Upon examination of the record as sent up, we find that the case was regularly constituted in court by summons duly issued and served, complaint and answer filed, orders made in the cause from time to time, trial duly had, issues submitted, verdict of the jury and judgment thereon, all of which are set out and regular except that copies of summons, complaint, and answer are not sent, the clerk certifying as cause for omission that said papers had been taken out of his office by appellant's counsel and lost. There is no affidavit to controvert this return of the clerk, and no averment of any effort below to have the papers supplied, as was held requisite in Nichols v. Dunning, 91 N.C. 4, though it is seven months since the appeal was taken. It would be a vain thing to send a certiorari down for papers which are not in the office, and to supply which no steps have been taken, the loss of which by appellant's counsel, as returned by the clerk, is not controverted, and as to which it is not even suggested that, if supplied and sent up, they would show any error. Indeed, after judgment, it is too late to object that there was no complaint or answer filed, (...