Rose v. City of Rocky Mount

• Decision Date: 13 September 1922
• Docket Number: 57.
• Citation: 113 S.E. 506,184 N.C. 609
• Parties: ROSE v. CITY OF ROCKY MOUNT.
• Court: North Carolina Supreme Court

113 S.E. 506

184 N.C. 609

ROSE v. CITY OF ROCKY MOUNT.

No. 57.

Supreme Court of North Carolina

September 13, 1922

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

Action by W. T. Rose against the City of Rocky Mount. Judgment for plaintiff, and defendant appeals. Appeal dismissed.

Where an appeal was not docketed until the term succeeding the required term, it will be dismissed, and the parties have no authority to make an agreement to the contrary.

Where an appeal is not docketed within the required time, the proper practice is to apply for certiorari; but such applications are not favored.

L. V Bassett and T. T. Thorne, both of Rocky Mount, for appellant.

F. S Spruill and J. P. Bunn, both of Rocky Mount, for appellee.

PER CURIAM.

The summons in this case was issued October 6, 1919, and the cause was tried at November term, 1921. The appeal should have been docketed here at last term, but it was not docketed until this term. It has been too often held, to be a matter of debate, that an appeal is not a matter of right, but is allowed upon conformity with the provisions of law and the rules of the court, which, if not complied with, the cause is not legally in this court and cannot be considered by us. In Mims v. Railroad, 183 N.C. 436, 111 S.E. 778, at last term, it was held as a settled rule of this court that, "where a case on appeal has not been docketed by appellant within the time required in the rule of practice in the Supreme Court, and a motion was not made at that time for a certiorari, the appeal will be dismissed," and the consent of parties for such failure to docket in apt time will not justify it. Stacy, J in the opinion in that case, referring to the decisions said:

"The statute must be complied with and the cause docketed here at the next term after the trial below. If in any case there is any reason why this cannot be done, the appellant must docket the record proper (at the proper time) and apply for a certiorari, which this court may allow, unless it dismisses the appeal, and may then set the case for trial at a later day at that term, or continue it as it finds proper. It is not permitted for counsel in a civil case, nor to the solicitor in a state case, to assume the functions of this court, and allow a cause to be docketed at a later term than that to which the appeal is required to be brought by the statute and the rules of this court."

To the same purport at the last term were State v. Johnson, 183 N.C. 730, 111 S.E. 891; State v. Brown, 183 N.C. 789, 111 S.E. 780; State v. Barksdale, 183 N.C. 785, 111 S.E. 711.

At the preceding term, in 182 N. C., the same ruling is upheld in Buggy Co. v. McLamb, 182 N.C. 762, 108 S.E. 344; Kerr v. Drake, 182 N.C. 766, 108 S.E. 393 (in which the matter was again fully discussed); Tripp v Somersett, 182 N.C. 768, 108 S.E. 633. These are some of ...