Robertson v. . Stone , 2 N.C. 401 ( 1796 )

A case happened some time ago at Edenton which has been cited as the ground of this application. In that case the appellant offered his appeal papers to the clerk of the Superior Court in the streets, not at his office, and the clerk for that reason refused to receive them, apprehending he was not bound to receive them but in his office; and the Court ordered the appeal papers to be filed, being of opinion the appellant had no remedy against the clerk. In this case, as he has a remedy prescribed by law, it is proper he shall pursue that. Were his case such as showed him to have been guilty of no neglect, and at the same time that he had no remedy against the officer, the Court would sustain his appeal to prevent a failure of justice, but that is not the present case.

The motion was overruled. It might, perhaps, have been improper to allow of filing the papers by way of appeal, for the appellee might have been at the office on the 15th day before term, to know whether they were filed or not; but quere, if they might not have been brought up by certiorari,Chambers v. Smith, ante, 366.

Cited: Hood v. Orr, 4 N.C. 584.