Smith v. . Lynn , 84 N.C. 837 ( 1881 )

Petition for certiorari heard at June term, 1880. The plaintiff in his petition for a writ of certiorari in the above entitled action, alleges that at spring (February) term, 1879, of the superior court for Wake county, a judgment was rendered against him in behalf of the defendant, from which he prayed and obtained an appeal to this court; that an appeal bond was given within ten days after the rendition of the judgment and a case on appeal was duly made out and executed according to law. That in consequence of his failure to comply with the demand of the clerk of the superior court of Wake, to pay him as fees for his services the sum of ten dollars, he failed to send up a transcript of the said cause, until January term, 1880, of this court.

This question has been settled in Andrews v. Whisnant, 83 N.C. 446, where it was held, that a certiorari will not be granted when it appears that the petitioner lost his appeal by reason of his failure to comply with a demand for payment of clerk's fees for making out the transcript, nor when he failed to attend to the same from the rendition of the judgment appealed from in August to the beginning of the next term of the supreme court in January, or during its sitting in said term.

In this case the appeal was taken at February term, 1879, of the superior court of Wake, and the transcript not filed until January term, 1880. The defendant has lost his appeal by his laches. The certiorari cannot be granted.

PER CURIAM. Petition denied.