Bargain House v. . Jefferson , 180 N.C. 32 ( 1920 )

Clakk, C. J.

The writ of recordari was improvidently granted, and the motion to dismiss should have been granted. Eev., 1492.

When an appeal from a justice of the peace is lost, without fault on the part of the appellant, he is entitled to the writ of recordari as a substitute for the lost appeal. But here the appellant was guilty of inexcusable neglect, and was not entitled to the writ. The judgment was rendered 3 September, conditional upon the plaintiff’s producing a receipt, which he did a few days later, and the plaintiff entered its appeal. The justice signed judgment 10 September, which was docketed in the Superior Court 18 September.

At the term of the court 29 September the appellant, with proper care, should have made inquiry as to the disposition of the ease which had been made by the justice, and. certainly it was inexcusable negligence to wait nearly three months before applying' for a recordari. Pants Co. v. Smith, 125 N. C., 590; Davenport v. Grissom, 113 N. C., 38, and eases there cited.

It is no excuse for the defendant if he depended on his counsel to look after the matter, for he could have attended to it himself. “It is not enough that parties to a suit should engage counsel and leave it entirely in his charge. They should, in addition to this, give to it that amount of attention which a man of ordinary prudence usually gives to his important business.” Roberts v. Allman, 106 N. C., 394, and citations thereto in Anno. Ed.

It was incumbent upon the defendant to docket his appeal in the time required by law or show sufficient ground for the recordari in lieu of the appeal. Walker, J., in Tedder v. Deaton, 167 N. C., 479.

An appeal lies from the dismissal of an action, or of an appeal, for that is final, but it does not lie from the refusal to dismiss, for an exception should be noted and an appeal lies from the final' judgment. Clements v. R. R., 179 N. C., 225. If the party loses, then the whole case will come up for review. But when an appeal is in fact taken, the' Court, though dismissing the appeal, in its discretion may express an opinion upon the merits. Hoke, J., in Taylor v. Johnson, 171 N. C., 85.

Each party will pay half the costs of appeal. Fleming v. Fleming, 159 N. C., 440; Wilson v. R. R., 142 N. C., 341; Patapsco v. Magee, 86 N. C., 357.

Appeal dismissed.