Mirror Co. v. . Casualty Co. , 157 N.C. 29 ( 1911 )

PLAINTIFF'S APPEAL. The above-entitled action was tried at February Term, 1911, of GUILFORD, and both parties appealed from the judgment therein. The plaintiff failed to docket its appeal at this term of Court, as it was required (30) to do, and the defendant moved to dismiss the appeal under Rule 17. The motion of the defendant would be granted but for the fact that plaintiff had abandoned the appeal below. Rule 17 (140 N.C. 493) provides that such a motion shall be made during the term of this Court to which the appeal is returnable, and not after said term; so that the defendant moved in apt time. Even the appellant is required by the rule to move for a reinstatement of his appeal at that term. Not only is that the requirement of the rule, but it has been so construed to be its meaning in several of our decisions. Benedict v. Jones, 131 N.C. 473;Graham v. Edwards, 114 N.C. 228. The practice in such cases as arise under this rule of the Court is fully stated by the present ChiefJustice in Porter v. R. R., 106 N.C. 478, which was followed by Hinton v. Pritchard, 108 N.C. 412; Paine v. Cureton,114 N.C. 606; Causey v. Snow, 116 N.C. 498, and numerous other cases cited in the note to Porter v. R. R., at marg. p. 480 of the anno. edition of 106 N.C. The change in the time prescribed by the Rules for docketing transcripts in this Court has not had the effect of altering the requirement in regard to motions of appellees to dismiss under Rule 17, as was decided in Benedict v. Jones, supra. If the appellant should docket the case before a motion is made by the appellee to dismiss, it will defeat such a motion, but the latter may move in the matter during the return term of the appeal at any time after the case should be docketed here. If the appellant should docket his appeal at any time after the end of said term of this Court, it will also be dismissed on motion. Benedict v. Jones, supra; Causey v. Snow, supra; Burrell v. Hughes,120 N.C. 277; S. v. James, 108 N.C. 792. It follows that, while the appellee in the plaintiff's appeal has come into this Court in time to avail itself of the right given by Rule 17 to dismiss, the motion is, nevertheless, denied, the plaintiff having abandoned its appeal, as appears from the papers on file here, and no motion to dismiss being really necessary.

Motion denied.

DEFENDANT'S APPEAL. (31)