Opinion
(July Term, 1816.)
When the clerk of the county court acted as deputy clerk of the Superior Court, and promised the appellant to file the appeal, and, though he did not actually place the papers in the office, considered them as filed, and so informed the clerk of the Superior Court, but the papers were not actually filed until a week before the court, a certiorari was granted.
APPLICATION on the part of the defendant, under the following circumstances: At the sessions of the county court of Rowan, when the verdict was taken against the defendant, he prayed an appeal, which was granted; and his attorney prepared an appeal bond, and requested the clerk of the county court to send it or take it up with the other papers, who promised to do so. The clerk of the Superior Court was absent from the State a considerable time, and the county court clerk transacted business for him; but the latter was also in the habit of returning all appeal papers to the Superior Court, and these papers he undertook to file in time. He accordingly brought them to the town where the office was kept, but neglected to leave them. He, however, considered them as filed, and so informed the clerk of the Superior Court upon his return. The clerk of the Superior Court returned three weeks before the sitting of the court, but the papers were not actually filed till the week preceding the court, and then it was that the information was given him that the clerk of the county court considered the papers as filed. The Superior Court office is kept seven miles distant from the county court.
The plaintiff also moved to amend the writ.
The circumstances disclosed by the affidavits filed in this case show that a failure of justice will probably occur unless the party who has without fault failed to obtain a new trial by appeal is assisted with the process which he prays.
Let a certiorari issue, with leave to the plaintiff to amend his writ.
NOTE. — See Davis v. Marshall, 9 N.C. 59. The clerk of the County court is now required to carry up the appeal himself. 1 Rev. Stat., ch. 4, sec. 3.
(441)