42 S.E. 909 | N.C. | 1902
Plaintiff, appellee, moves to dismiss the appeal for that it appears from the record that the case was tried and final judgment entered at May Term, 1902, of BUNCOMBE, and that the counter case on appeal was served on defendant, appellants', counsel 31 July, 1902; and that independent of such date the appellee says it was the duty of appellant's counsel to file the transcript in time for the appeal to be heard at the present term of the Supreme Court, but that the transcript was not filed till 26 November, 1902, too late under the rule for the appeal to be determined at this term, and asks that the appeal be dismissed. From judgment for the plaintiff the defendants appealed.
The case was tried below in May, 1902, and the transcript was docketed here 26 November, 1902, which was too late to permit of the appeal being argued at this term, it being within less than seven days before the call of the district (474) to which it belongs. Rule 5,
The uniform ruling of this Court has been in accord with the above decisions, and 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,
There have been changes, as will be seen by the above cases, as to the time during such next term by which an appeal must be docketed to secure a hearing at that term. Originally it must have been docketed "during the call of the docket of the district to which the appeal belongs," and of course the first time at which the appellee could have moved then to dismiss for failure to docket was at the end of the call of the district. Then the time was moved up so as to require docketing "during the first two days of the call of the district"; later the time for docketing to secure a hearing was "before the beginning of the call of the district," and now it must be docketed "seven days before the beginning of the call of the district," and of course the right of the appellee to docket and move to (475) dismiss has moved up accordingly and has accrued upon default to docket by the time required in order to secure a hearing. But this has not affected of course the principle that if the appellee fails to move to dismiss at the first opportunity, under Rule 17,
The transcript on appeal seems to be defective in that it does not set out the organization of the Court, and possibly in other particulars. S. v.Butts,
Motion denied. *342
Cited: Worth v. Wilmington, post, 532; Curtis v. R. R.,
(476)