Porter v. Western N.C.R. Co.

• Decision Date: 06 May 1890
• Citation: 11 S.E. 515,106 N.C. 478
• Parties: PORTER v. WESTERN N.C. R. CO.
• Court: North Carolina Supreme Court

11 S.E. 515

106 N.C. 478

PORTER v. WESTERN N.C. R. CO.

Supreme Court of North Carolina

May 6, 1890

Motion to dismiss appeal.

Rule 5 of the Supreme Court requires appeals to be docketed at the term beginning next after the trial below, and before the completion of the call of causes from the district to which it belongs. Rule 17 provides that, if an appeal is not docketed before the call of causes from that district is concluded, the appellee may docket a certificate, and have the appeal dismissed. Held that, where appellant failed to docket his appeal as required by rule 5, the appeal will be dismissed, though appellee did not move to docket and dismiss during the week allotted to that district.

G. A Shuford, for appellant.

D Schenck and F. H. Busbee, for appellee.

CLARK J.

This cause was tried at August term, 1889, of Buncombe superior court; and the appeal was docketed here April 14, 1890. The case on appeal was settled and filed in the clerk's office below in time for the transcript on appeal to have been docketed here before the call of causes from that district was concluded at fall term, 1889. The appellant however, insists that, as the appellee did not move to docket and dismiss during the week allotted to that district, the appeal docketed at this term cannot be dismissed, and relies upon Barbee v. Green, 91 N.C. 158; Rollins v Love, 97 N.C. 210, 2 S.E. Rep. 166; and Bryan v Moring, 99 N.C. 16, 5 S.E. Rep. 739. This is a misconception of the purport of those decisions. The rules in regard to the time in which appeals should be docketed have been often construed, and the decisions may be summarized as follows: (1) Appeals in causes tried before the commencement of a term of this court must be docketed at such term, before the completion of the call of causes from the district to which they belong. Rule 5. (2) If not docketed before the call of causes from that district is concluded, the appellee may docket a certificate under rule 17, 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 the trial below, but after the perusal of the district to which it belongs, the appellee cannot then move to dismiss. Bryan v. Moring, and other cases above cited and relied on by the appellant. But the neglect of appellee to move to docket and dismiss extends no further, and, if the appeal is docketed at a...