Cross v. . Williams , 91 N.C. 496 ( 1884 )

After the call of causes from the sixth district was concluded at the present term, the appellees in this case filed the certificate of the clerk of the superior court of Davidson county, from which it appears that a judgment was rendered against the appellants at the spring term, 1884, of that court, from which they took an appeal to this court, that the case upon appeal for this court was settled by the presiding judge on the 4th day of July, 1884, but no undertaking upon appeal was given. Upon the certificate of the clerk thus filed the appellees moved to dismiss the appeal, as allowed by section 7 of Rule 2.

An appeal is not pending in this court in the sense of the statute, (THE CODE, § 967,) until it is brought up and docketed. As soon, however, as it is taken, as directed by the statute, this court may for good cause upon proper application of the appellant or of the appellee, bring it up by means of the writ of certiorari, or allow the appellee to bring up a transcript of the record, or a certificate of the clerk to the effect that the appeal was taken, docket the same and move to dismiss it. The appellant has no right to take an appeal and bring it up, or abandon it at his will and pleasure; he must bring it up in the established course of procedure. The appellee has a right to have the appeal disposed of according to law, and if the appellant will not prosecute it, the appellee may rid himself of it, and have the benefit of the judgment appealed from.

The provision of THE CODE, § 967, refers to and provides for dismissing appeals pending in this court, that is, to appeals regularly brought up and docketed. But section 7 of Rule 2, refers to and provides for dismissing appeals, in cases where the appellant neglects or refuses to bring up and docket his appeal.

In this case the appellants have failed to bring up their appeal as required by law. Hence, the appellees have the right to move to docket and dismiss it. They have complied with the rule, and the motion must be allowed.

Appeal dismissed.