Davenport v. Grissom , 113 N.C. 38 ( 1893 )

Olakk, J.:

The judgment by the Justice having been rendered more than ten days before the next ensuing term of the Superior Court, the appeal should have been docketed at that term. The Code, §§876, 877, 880 and 565; Ballard v. Gay, 108 N. C., 544.

The attempted docketing at a subsequent term was a nullity, and the Judge properly held that the ease was not in the Superior Court, and that the plaintiff appellant could not take a nonsuit. To permit such course would have been to allow the appellant to avoid the effect of his delay in bringing up the appeal in proper time, and to institute a new action. The policy of the law, as said by Avery, J., in Ballard v. Gay, 103 N. C., 514, is to “ require litigants to be diligent in prosecuting appeals from Justices of the Peace, and to prevent parties from using such as a means of eaus-ing useless delay.” This is cited and approved in State v. Johnson, 109 N. C., 852.

Nor did the Judge err in holding that he had no discretion to permit the appeal to be docketed at a subsequent term io the one to which it should have been returned. The appellant had his remedy (if in no default) by an application for a recordari at the first ensuing term of the Superior Court after appeal taken. Boing v. Railroad, 88 N. C., 62. It is true that when proper notice of appeal is not given in a case tried before a Justice of the Peace, if the appeal is regularly docketed in due time in the Superior Court, the Judge may permit notice of appeal to be then given, though the exercise of the discretion is not encouraged: State v. Johnson, 109 N. C., 852; Sondley v. Asheville, 112 N C., 694. But that is where the case is on docket, and the appellee has not been delayed. It does not recognize the right to revive an appeal lost by delay, and to permit the same to be docketed at a subsequent term of the Superior Court.

The Act of 1889, ch. 443, permitting the appellee to docket the case at the first term of the Superior Court, if the appellant does not, and have the judgment below affirmed, merely extends to that Court the provisions of Rule 17 in the Supreme Court. It is a privilege to the appellee, and the appellant can draw no argument against appellee from his failure to use it. Ballard v. Gay, supra; Wilson v. Seagle, 84 N. C., 110.

No Error.