Walker v. Scott

• Decision Date: 21 December 1889
• Parties: WALKER v. SCOTT.
• Court: North Carolina Supreme Court

10 S.E. 523

104 N.C. 481

WALKER v. SCOTT.

Supreme Court of North Carolina

December 21, 1889

Appeal from superior court, Cherokee county; BOYKIN, Judge.

Where appellant's affidavits show that the transcript of the record was mailed in ample time to have reached the office of the clerk of the Supreme Court, and to have been docketed before the cases from appellant's district were called for argument, a motion to dismiss on the ground that the case was not docketed before the call of the district to which it belonged will be denied.

CLARK J.

At last term the appellee moved to dismiss this appeal, and assigned as one of the grounds that it had not been docketed before the call of the district to which it belonged. The appellant obtained leave to show reasonable excuse for such failure. 102 N.C. 487, 9 S.E. Rep. 488. At this term the appellant shows by affidavits, which are uncontradicted, that the transcript of the record on appeal was mailed in ample time to have reached the office of the clerk of this court, and have been docketed, before the cases on appeal from that district were called for argument. The delay was caused by some irregularity of the mails. The excuse is reasonable, and the motion dismiss to on that ground is denied. As the appeal was taken several months previous, we see no reason why the appellant should not have had the record sent up earlier, and avoided the risk of delay by possible irregularities of the mail. The attention of clerks of the superior courts should be called to section 551 of the Code, which requires them to send up a transcript of the record in each case on appeal within 20 days after the case agreed by counsel, or the case settled by the judge, is filed. This act should be strictly observed.

In the court below, it was found at fall term, 1888, upon appellant's own testimony, that the case on appeal was served on November 2, 1888, and that the court at which the cause was tried adjourned October 27th. It was in evidence that the cause was tried on October 24th, and it was controverted whether the appeal was entered on that day or on October 27th, the day the court adjourned. This was immaterial. The appeal, in a legal sense, was not taken till the court adjourned; for till then the proceedings were in fieri, and the appeal inchoate. Turrentine v. Railroad Co., 92 N.C. 642. The five days in which the case on appeal was to be served on appellee are to be counted from October 27th, the day on which the court adjourned. Section 596 of the Code provides that in the...