In Re Suggs

78 S.E.2d 157 (1953) 238 N.C. 413

In re SUGGS.

No. 242.

Supreme Court of North Carolina.

October 14, 1953.

Hooks & Britt, Smithfield, for respondent appellant.

Wilson & Johnson, Lillington, for petitioner appellee.

PER CURIAM.

This cause was tried prior to the convening of the Spring Term 1953 of this Court. It was the duty of the appellant to docket her appeal in this Court at that term, twenty-one days prior to the call of the docket of the Fourth Judicial District, to which this case belongs. It was actually docketed 4 September 1953, after the Fall Term had convened.

Neither an agreement of the parties nor the allowance of time by the judge for perfecting the appeal will excuse the delay. Rule 5, Rules of Practice in the Supreme Court, 221 N.C. 546, is mandatory and cannot be abrogated by consent or otherwise. Failure to docket as thus required results in the loss of the right of appeal and necessitates dismissal. Jones v. Jones, 232 N.C. 518, 61 S.E.2d 335; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; State v. Presnell, 226 N.C. 160, 36 S.E.2d 927.

Here the cause was heard on affidavits. If the affidavits were filed with the clerk as a part of the record, as they should have been, then a case on appeal was not required. Privette v. Allen, 227 N.C. 164, 41 S.E.2d 364; Russos v. Bailey, 228 N.C. 783, 47 S.E.2d 22; Reece v. Reece, 231 N.C. 321, 56 S.E.2d 641; Wilson v. Chandler, N.C., 78 S.E.2d 155. In any event, a case on appeal which would be composed exclusively of affidavits could have been prepared and served in the course of a day or so. Allowance of a total of more than 120 days extending the time beyond the date for docketing in this Court was unnecessary. Had it been necessary to protect her right of appeal, appellant had an adequate remedy by a writ of certiorari.

Perhaps it will occur to appellant that this disposition of her appeal does not close the door to a further hearing.

Appeal dismissed.