Stone v. Ledbetter

• Decision Date: 19 May 1926
• Docket Number: 529.
• Parties: STONE et al. v. LEDBETTER.
• Court: North Carolina Supreme Court

133 S.E. 162

191 N.C. 777

STONE et al. v. LEDBETTER.

No. 529.

Supreme Court of North Carolina

May 19, 1926

Appeal from Superior Court, Transylvania County; Harding, Judge.

Action by E. L. Stone and others against P. B. Ledbetter. Judgment for plaintiffs, and defendant appeals. Appeal dismissed.

The rules of practice in the Supreme Court are mandatory, and not directory, and must be uniformly enforced.

D. L English, of Brevard, for appellant.

Welch Galloway, of Asheville, for appellees.

ADAMS J.

The plaintiffs brought suit against the defendant to recover a tract of land, and to remove a cloud from their title. The cause was tried at a term of the superior court, which convened on July 27, 1925, and judgment was rendered in favor of the plaintiffs. The defendant gave notice of appeal, and his case and the plaintiffs' countercase were served in due time. The Supreme Court was not then in session, and under the fifth and seventh rules of practice (185 N.C. 788) the transcript of the record on appeal should have been docketed here at the fall term, 1925, 7 days (now 14) before the docket of the eighteenth district was called; but the parties agreed in writing to extend the time for settling the case on appeal until the December term of the superior court of Transylvania. This agreement was made November 23d, more than 3 months after the trial, and one week before th docket of the district was to be called; and, owing to this agreement, the case on appeal was not settled until December 10, 1925. One month later, January 10, 1926, the appeal was filed in this court.

"It is the established rule of our procedure that an appeal from a judgment rendered prior to the commencement of a term of this court must be brought to the next succeeding term of this court, and, in order to a hearing in regular order, the same shall be docketed seven days before the calling of the docket of the district to which it belongs. *** In numerous decisions of the court dealing directly with the subject, it has been held that these rules governing appeals are mandatory and must be uniformly enforced, the only modification permitted or sanctioned by these decisions being to the effect that, where from lack of sufficient time or other cogent reason the case on appeal may not be in shape for docketing in the time required, the appellant may within such time docket the record proper and move for a certiorari which may be allowed by the court on sufficient showing made." State v. Farmer, 188 N.C. 243, 124 S.E. 562.

In Haynes v. Coward, 116 N.C. 840, 21 S.E. 690, it is said:

"If there is delay in sending up the transcript on appeal in time to be docketed for hearing during the call of the district to which it belongs at the first term of this court beginning after the trial below as required by rule 5, *** and such delay is caused by the neglect of the clerk or judge, all the authorities are to the effect that the appellant, if without laches himself, is entitled to a certiorari to bring up the transcript or the omitted part of it, as the case may be. But the writ must be applied for regularly, at such term, rule 41 [now 34], and before the appeal is dismissed."

To the same effect is Brown v. House, 119 N.C. 622, 26 S.E. 160:

"The appellee makes the objection to the petition for certiorari that the appellant has not filed a transcript of the record proper (or shown why he could not do so) as a basis for the motion for a certiorari for the 'case on appeal.' The objection is fatal. Pittman v. Kimberly, 92 N.C. 562; Owens v. Phelps, 91 N.C. 253; State v. Freeman, 114 N.C. 872, 19 S.E. 630; Shober v. Wheeler (at this term) 119 N.C. 471, 26 S.E. 26. The petitioner for certiorari must show himself free from laches by doing all in his power towards having the appeal perfected and docketed in time."

Also, State v. Trull, 169 N.C. 363, 370, 85 S.E. 133, 137:

"It appears in the record that the solicitor agreed with the prisoner's counsel that the case might be postponed and docketed at this term. This was an irregularity, and was beyond his authority. The statute must be complied with and the cause docketed at the next term here after the trial below. If in any case there is any reason why this cannot be done, the appellant must docket the record proper 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,

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