Porter v. Western North Carolina Railroad , 106 N.C. 478 ( 1890 )

The facts are set out in the opinion. This cause was tried at August Term, 1889, of Buncombe Superior Court, and the appeal was docketed here 14 April, 1890. The case on appeal was settled and filed in the clerk's office below, in time for the transcript on appeal to have been docketed here before the call of causes from that district was concluded at Fall Term, 1889. The appellant, however, insists that as the appellee did not move to docket and dismiss during the week allotted to that district, that the appeal, docketed at this term, cannot be dismissed, and the relies upon Barbee v.Green, 91 N.C. 158; Rollins v. Love 97 N.C. 210; and Bryan v.Morning, 99 N.C. 16. This is a misconception of the purport of those decisions. The rules in regard to the time in which appeals (479) should be docketed have been often construed, and the decisions may be summarized as follows:

1. Appeals in causes tried before the commencement of a term of this Court must be docketed at such term before the completion of the call of causes from the district to which they belong. Rule 5.

2. If not docketed before the call of causes from that district is concluded, the appellee may docket a certificate under Rule 17 and have the appeal dismissed.

3. If the appellant does not do this, and the appeal is docketed at such term of this Court which begins next after the trial below, but after the perusal of the district to which it belongs, the appellee cannot then move to dismiss. Bryan v. Moring, and other cases above cited and relied one by the appellant. But the neglect of appellee to move to docket and dismiss extends no further, and if the appeal is docketed at a term of this Court after the one at which it is required to be filed, the appeal will be dismissed on motion.

4. Appeals taken from judgments rendered below during the progress of a term of this Court are not necessarily to be docketed at such term, but are in time if docketed at the first term of this Court beginning next after the trial below. If, by reason for observance of the statutory time allowed for setting cases on appeal, a cause is docketed here before the perusal of the district to which it belongs, at the same term of this Court which was in progress when the trial below was had, it stands regularly for trial. Rule 5. Avery v. Pritchard, ante, 344.

5. Appeals in criminal cases, and civil cases submitted upon printed arguments under Rule 10, are heard at the first term, even if docketed after the perusal of the district to which they belong.

6. If, by neglect of the judge, clerk, or cause other than neglect of the appellant, the "case on appeal" cannot be docketed at the term at which it is required to be field, it is the duty of the appellant to docket the rest of the transcript at such term, and move for a (480)certiorari, or he will lose his appeal. Pittman v. Kimberly,92 N.C. 562.

The appeal here not having been docketed at the first term of this Court which began after the trial below, must be dismissed.

Appeal dismissed.

Cited: Hinton v. Pritchard, 108 N.C. 413; Johnston v. Whitehead,109 N.C. 209; Sondley v. Asheville, 110 N.C. 90; Pipkin v. Green,112 N.C. 356; Graham v. Edwards, 114 N.C. 229; Paine v. Cureton, ibid., 607;S. v. Freeman, ibid., 873; Causey v. Snow, 116 N.C. 498; Haynes v.Coward, ibid., 841; S. v. Deyton, 119 N.C. 882; Guano Co. v. Hicks,120 N.C. 30; Davison v. Land Co., ibid., 259; Burrell v. Hughes, ibid., 278;Caldwell v. Wilson, 121 N.C. 424; Barrus v. R. R., ibid., 50; S. v.Telfair, 139 N.C. 555; Hewitt v. Beck, 152 N.C. 758; Mirror Co. v.Casualty Co., 157 N.C. 30; Howard v. Speight, 180 N.C. 654.