Opinion
(Filed 3 November, 1903.)
1. Appeal — Case on Appeal — Certiorari — The Code, Sec. 550.
Where the parties fail to agree on a case on appeal, and the appellant fails for two months to send the papers to the trial judge, the delay not being satisfactorily accounted for, a motion for certiorari to bring up the case will be denied.
2. Appeal — Transcript — Record — Supreme Court Rules 30, 34 — Rules of Practice.
Where the record and briefs are not printed within the time prescribed by Supreme Court Rules 30 and 34 the appeal will be dismissed.
ACTION by A. S. Stroud against the Western Union Telegraph Company, heard by W. R. Allen, J., and a jury, at June Term, 1903, of GUILFORD. From a judgment for the plaintiff, the defendant appealed.
John A. Barringer for plaintiff.
King Kimball and F. H. Busbee Son for defendant.
This cause was tried at June Term, 1903, of Guilford Superior Court, and by consent of the parties thirty days were allowed to serve statement of "case on appeal," and thirty days thereafter to serve counter-case. The counter-case was served 15 August, being within the time specified. It was thereupon the duty of the appellant, unless he accepted the counter-case, to "immediately request the judge to fix a time and place for settling the case before him." The Code, sec. 550; Simmons v. Andrews, 106 N.C. 201. The appellant did not accept the counter-case, and instead of "immediately" taking steps (254) to bring the matter before the judge, that he might settle the case, the appellant took no action whatever to that end till 14 October, and shows no legal excuse for his laches. The judge promptly settled the case on 17 October and sent it by express to the appellant, but it was not docketed here on the morning of 20 October, as required for that district, and the appellant on the opening of Court on that day moved for a certiorari.
The laches in failing to send the papers to the judge immediately upon receipt of the counter-case, and delaying to do so for two months, not being accounted for to our satisfaction, the motion for certiorari must be denied. ( Peebles v. Braswell, 107 N.C. 68; Brown v. House, 119 N.C. 622), and the counter-motion to dismiss for failure to print the record and briefs within the time prescribed by Rule 34, 131 N.C. 831, and Rule 30, 128 N.C. 642, must be allowed.
Appeal dismissed. Cited: Comrs. v. Chapman, 151 N.C. 328; Transportation Co. v. Lumber Co., 168 N.C. 61; McNeil v. R. R., 173 N.C. 730; Hicks v. Wooten, 175 N.C. 601.
(255)