Opinion
(October Term, 1796.)
The appellant applied in time to the clerk for the papers, but could not procure them. The papers were, however, brought up after the fifteenth day before the term, and a motion was made to have them filed. Upon the motion being opposed by the appellee, it was refused upon the ground that the party had his remedy against the clerk. It seems if there had been no remedy against the clerk the papers might have been filed.
(402) APPEAL from a verdict in PERSON County Court. The appellant applied in time to the clerk of the county court for the papers, but could not procure them. The papers, however, were brought up after the fifteenth day before the term, and the appellant moved to have them filed and the cause placed on the trial docket. And now, at this term, the appellee came in to show cause against the motion. He insisted that if the appellant could not procure the papers from the clerk of the county court, as he alleged, that was no reason for setting the cause now down for trial, as the act of 1777, ch. 2, sec. 87, had expressly provided for such a case, namely, that the clerk should forfeit £ 50 to the appellant, and also all damages sustained by reason of such delay or refusal.
A case happened some time ago at Edenton which has been cited as the ground of this application. In that case the appellant offered his appeal papers to the clerk of the Superior Court in the streets, not at his office, and the clerk for that reason refused to receive them, apprehending he was not bound to receive them but in his office; and the Court ordered the appeal papers to be filed, being of opinion the appellant had no remedy against the clerk. In this case, as he has a remedy prescribed by law, it is proper he shall pursue that. Were his case such as showed him to have been guilty of no neglect, and at the same time that he had no remedy against the officer, the Court would sustain his appeal to prevent a failure of justice, but that is not the present case.
The motion was overruled. It might, perhaps, have been improper to allow of filing the papers by way of appeal, for the appellee might have been at the office on the 15th day before term, to know whether they were filed or not; but quere, if they might not have been brought up by certiorari, Chambers v. Smith, ante, 366.
Cited: Hood v. Orr, 4 N.C. 584.