Opinion
(Filed 17 December, 1904.)
Appeal — Dismissal — Rules of Supreme Court, 5, 28, 34, 17.
Though an appeal is not docketed seven days before the call of the district to which it belongs, if the appellee fails to docket a certificate and move to dismiss before the appellant dockets his transcript, the appeal will not be dismissed.
ACTION by W. A. Curtis against the Southern Railway Company, from BUNCOMBE, Long, J., August Term, 1904. From a judgment for the defendant, the plaintiff appealed.
A. J. Franklin for plaintiff.
Moore Rollins and A. B. Andrews, Jr., for defendant.
This is a motion to dismiss this appeal: (1) because not docketed seven days before beginning the call of the district to which it belongs, as required by Rule 5; (2) because the record was not printed in the time required by Rule 34; (3) because the appellant has not printed and filed a brief in time required by Rules 28 and 34. It is only necessary to quote what was said upon an identical motion in Benedict v. Jones, 131 N.C. 474: "The uniform ruling of this (309) Court . . . 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, and 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," and citing other cases.
Here the appeal was not docketed at the required time, but it was docketed at this term, the first term beginning since the trial below, and being docketed before the appellee moved to dismiss, the latter's motion came too late. As the case consequently goes over to the next term for hearing, the record and brief are only required to be printed at next term at the specified time before the call of the district to which the appeal belongs.
Motion denied.
Cited: Ammons v. R. R., post, 707; Foy v. Gray, 148 N.C. 436; Craddock v. Barnes, 140 N.C. 428; Laney v. Mackey, 144 N.C. 632. (310)