Pentuff v. Park

• Decision Date: 09 May 1928
• Docket Number: 496.
• Parties: PENTUFF v. PARK et al.
• Court: North Carolina Supreme Court

143 S.E. 139

195 N.C. 609

PENTUFF v. PARK et al.

No. 496.

Supreme Court of North Carolina

May 9, 1928

Appeal from Superior Court, Cabarrus County; Finley, Judge.

Action by James R. Pentuff against John A. Park and others. Judgment for defendants, and plaintiff appeals. On motion to reinstate appeal after allowance of motion to dismiss. Motion to reinstate disallowed, and appeal dismissed.

See also, 194 N.C. 146, 138 S.E. 616, 53 A. L. R. 626.

Civil action for libel, tried at the August term, 1927, Cabarrus superior court, upon issues raised by the pleadings, which resulted in a verdict and judgment for the defendants, from which the plaintiff appeals, assigning errors.

Upon the call of the docket from the district to which the case belongs, there was a motion by defendants to dismiss the appeal for failure to prosecute same as required by the Rules of Practice in the Supreme Court. This motion was allowed.

The plaintiff then moved to reinstate the appeal for cause set out in the motion.

Rules of Supreme Court governing appeals are mandatory on Legislature, judge, counsel, and litigants.

Zeb. v Turlington, of Mooresville, and Caldwell & Caldwell, of Concord, for plaintiff.

Albert L. Cox and A. L. Purrington, Jr., both of Raleigh, for defendants.

STACY C.J.

This was a civil action tried at the August term, 1927, Cabarrus superior court, which was a three weeks' term, commencing August 15 and ending September 3. The case was tried during the first week of the term and resulted in a verdict and judgment for the defendants. Judgment was signed August 27 1927. The plaintiff gave notice of appeal to the Supreme Court, and was allowed 50 days within which to prepare and serve statement of case on appeal, while the defendants were allowed 30 days thereafter to file exceptions or counter statement of case. There was no application for a certiorari at the fall term, 1927, of this court, the next succeeding term commencing after the rendition of the judgment in the superior court, and the term to which the appeal should have been brought.

True the August term of Cabarrus superior court at which the case was tried did not adjourn until after the commencement of the fall term of this court on August 29, 1927. But, under C. S. 613, "judgments rendered in any county by the superior court, during a term of the court, and docketed during the same term, or within ten days thereafter, are held and deemed to have been rendered and docketed on the first day of said term." Rule 5 of the Rules of Practice in the Supreme Court (192 N.C. 841) provides, among other things, that the transcript of record on appeal from a judgment "rendered before the commencement of a term of this court" must be brought to such term, the next succeeding term, and docketed here 14 days before entering upon the call of the district to which the case belongs, with the proviso that appeals in civil cases (but otherwise in criminal cases) from the First, Second, Third and Fourth districts, tried between the 1st day of January and the first Monday in February, or between the 1st day of August and the fourth Monday in August, are not required to be docketed at the immediately succeeding term of this court, though if docketed in time for hearing at said first term the appeal will stand regularly for argument.

The single modification of this requirement, sanctioned by the decisions, is that where, from lack of sufficient time or other cogent reason, the case is not ready for hearing it is permissible for the appellant, within the time prescribed, to docket the record proper and move for a certiorari, which...