Opinion
(October Term, 1884.)
Appeal, motion to dismiss — Rules of Supreme Court, observance of.
A motion to dismiss an appeal, upon the ground that the appellant did not cause the same to be docketed in accordance with Rule 2, will not be granted, where it appears that the appellee has also failed to comply with its requirements. One who seeks benefit under the Rule must himself observe it.
MOTION to dismiss an appeal heard at October Term, 1884, of THE SUPREME COURT.
Messrs. Lewis Son, for plaintiff appellee.
Messrs. Battle Mordecai, for defendant appellant.
The appeal was taken in this action at the last term of the superior court of Wake county, which was held in the month of August last. The transcript of the record was not filed and the appeal docketed in this court, until the 18th of October, more than eight days after the present term began, and after the court had begun the call of the cases from the judicial district to which the case belongs.
The appellee moved to dismiss the appeal, because the appellant failed to docket the same within the time above indicated in accordance with paragraph six of Rule 2.
It is clear, that the motion cannot be sustained, because, although the appellant did not comply with the rule in respect to docketing appeals, as regularly as he ought to have done, the appellee did not proceed as the rule allowed him to do in such a case.
If the appellant failed to bring up a transcript of the record and docket the appeal before the call of the causes from the district to which it belonged was concluded, during the week set apart to that district at the term of this court to which the appeal was taken, then the appellee, on exhibiting a certified transcript of the record, or the certificate of the clerk, as required by paragraph seven Rule 2, and filing the same, may move to have the appeal docketed and dismissed at the appellant's costs. Rule 2, par. 7, ( 89 N.C. 598).
This the appellee did not do. He did not exhibit a transcript of the record, or the certificate of the clerk as required. He waited until the appellant docketed his appeal and then moved to dismiss it. This he could not do, because the rule does not provide for, or authorize such motion, and it is only by virtue of the rule that a motion to dismiss could be sustained for the causes mentioned. The appellant did not comply with the rule, nor did the appellee in his motion to dismiss. Whoever would avail himself of the benefits of the rule must observe its requirements, and place himself within its purpose and scope.
Motion denied.