Opinion
June Term, 1822.
When a party appellant depended upon the clerk of the county court, who acted as deputy clerk of the Superior Court, to bring up an appeal, and the clerk of the county court was in the habit of bringing up all appeals, and had formerly brought up one for the present appellant, but on this occasion omitted it through forgetfulness, it was held that the negligence of the appellant was such that he was not entitled to a certiorari.
JUDGMENT having been obtained against the defendant, Marshall, in the county court of WARREN, a writ of ca. sa. issued thereon, and Marshall gave bond pursuant to the provisions of the "act for the relief of honest debtors," to which the defendant, Russell, became surety. This bond was returned to court, and in the absence of Marshall a judgment was rendered against Russell, who, on a subsequent day of the term, moved to set aside the judgment and that he might be permitted to surrender Marshall in discharge of himself. The county court refused to grant the motion, and Russell appealed. At the succeeding term of the Superior Court of Warren, as the transcript of the record had not been filed with the clerk of that court, Russell prayed the presiding judge for a writ of certiorari and filed an affidavit stating the foregoing facts, and also that he had believed the clerk of the county court would bring up the transcript, particularly as he had so done for the affiant on a former occasion. He read also the affidavit of the clerk of the county court, stating that he acted as clerk of the county court, and deputy clerk of the Superior Court, that it was his usual practice, on appeals from the court below, to prepare the transcript and file it himself, in the office of the Superior Court, without waiting for an application to do so by the appellants; that on a former occasion he had done so (60) for the defendant Marshall, and was prevented by hurry and oversight from pursuing a similar course on this occasion.
The presiding judge refused to grant the writ of certiorari, and the defendant appealed.
It seems that the appellant made no effort either to bring up the appeal himself or cause it to be done by any other person. He depended upon the clerk of the county court, he says, to bring it up, because (as the clerk admits) he had been in the habit of bringing up all appeals taken from the county court, but omitted through forgetfulness to bring up this one. Other instances of forgetfulness like this, to which the human character is liable, particularly as a good deal might be depending upon it, should have taught the appellant the necessity of attending to the business himself. In cases of such negligence this Court cannot interfere and, however much it may regret it, it must say that the writ of certiorari cannot be granted.
PER CURIAM. Affirmed.
Cited: Collins v. Nall, 14 N.C. 226; Hester v. Hester, 20 N.C. 456; Winborne v. Byrd, 92 N.C. 9.
(61)