Benedict v. Jones.

Plaintiff, appellee, moves to dismiss the appeal for that it appears from the record that the case was tried and final judgment entered at May Term, 1902, of BUNCOMBE, and that the counter case on appeal was served on defendant, appellants', counsel 31 July, 1902; and that independent of such date the appellee says it was the duty of appellant's counsel to file the transcript in time for the appeal to be heard at the present term of the Supreme Court, but that the transcript was not filed till 26 November, 1902, too late under the rule for the appeal to be determined at this term, and asks that the appeal be dismissed. From judgment for the plaintiff the defendants appealed. The case was tried below in May, 1902, and the transcript was docketed here 26 November, 1902, which was too late to permit of the appeal being argued at this term, it being within less than seven days before the call of the district (474) to which it belongs. Rule 5, 128 N.C. 634. After it was docketed the appellee moved to dismiss. This was too late. Rollins v. Love, 97 N.C. 210; Barbee v. Green,91 N.C. 158.

The uniform ruling of this Court has been in accord with the above decisions, and may be thus summed up: An appeal must be docketed not later than the termination of the next term of this Court beginning after the trial below (with the exceptions specified in the proviso to Rule 5,128 N.C. 634). If not docketed at such term by the time required for hearing, at such term the appellee may docket a certificate under Rule 17 then or at any time during the term, if before the appellant dockets the transcript, and have the appeal dismissed. But if the appellee is dilatory and the appellant dockets the transcript at that term, before the appellee moves to dismiss, though too late to secure a hearing, then the appeal will not be dismissed. Packing Co. v. Williams, 122 N.C. 406;Smith v. Montague, 121 N.C. 92; Speller v. Speller, 119 N.C. 356;Haynes v. Coward, 116 N.C. 840; Paine v. Cureton, 114 N.C. 606;Triplett v. Foster, 113 N.C. 389.

There have been changes, as will be seen by the above cases, as to the time during such next term by which an appeal must be docketed to secure a hearing at that term. Originally it must have been docketed "during the call of the docket of the district to which the appeal belongs," and of course the first time at which the appellee could have moved then to dismiss for failure to docket was at the end of the call of the district. Then the time was moved up so as to require docketing "during the first two days of the call of the district"; later the time for docketing to secure a hearing was "before the beginning of the call of the district," and now it must be docketed "seven days before the beginning of the call of the district," and of course the right of the appellee to docket and move to (475) dismiss has moved up accordingly and has accrued upon default to docket by the time required in order to secure a hearing. But this has not affected of course the principle that if the appellee fails to move to dismiss at the first opportunity, under Rule 17, 128 N.C. 638, the appellant can docket the case at any other time during that term provided he does so before the appellee has moved to dismiss under said rule. Of course if the appeal is not docketed till after the termination of such next ensuing term it will be dismissed. Burrell v.Hughes, 120 N.C. 277; S. v. James, 108 N.C. 792. The laches of the appellee in not moving to dismiss under Rule 17, as soon as he might, will not authorize the appellant to docket after that term.

The transcript on appeal seems to be defective in that it does not set out the organization of the Court, and possibly in other particulars. S. v.Butts, 91 N.C. 524, and other cases cited in Clark's Code (3 Ed.), p. 915. But this may be cured if a writ of certiorari is asked in proper time and allowed, or a motion to dismiss may be made on those grounds when the case is reached at the next term. The cause is not before us upon such motions now. The transcript on appeal having been docketed at the proper term, though too late for argument, yet before the appellee moved to dismiss, as authorized by Rule 17, the motion to dismiss must be denied.

Motion denied. Cited: Worth v. Wilmington, post, 532; Curtis v. R. R., 137 N.C. 309;Ammons v. R. R., ib., 707; Craddock v. Barnes, 140 N.C. 428; Laney v.McKay, 144 N.C. 632.

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