Burrell v. . Hughes

26 S.E. 782 | N.C. | 1897

The judgment was taken in Orange Superior Court at August Term, 1896, and the appeal should have been docketed in this court at last term, rule 5 of this court, and if without laches of the appellant, the "case on appeal" was not then settled by the Judge, the appellant should have docketed the rest of the transcript and applied for a certiorari. Guano Co. v. Hicks, ante, 29; Shober v. Wheeler,119 N.C. 471; Causey v. Snow, 116 N.C. 497; S. v. Freeman, 114 N.C. 872;Pipkin v. Green, 112 N.C. 355; Porter v. R. R., 106 N.C. 478;Stephens v. Koonce, 106 N.C. 255; Norman v. Snow, 94 N.C. 431;Owens v. Phelps, 91 N.C. 253; Pittman v. Kimberly, 92 N.C. 562; citing Wiley v. Lineberry, 88 N.C. 68, and Suiter v. Brittle, 90 N.C. 19. If by reason of the loss of the original papers, or other good cause, the transcript of no part of the record could be docketed here at the first term beginning after the trial below, then that fact should have been shown by affidavit, and a certiorari asked for, supplemented by a motion below to supply the papers. Peebles v. Braswell, 107 N.C. 68; Nichols v. Dunning, 91 N.C. 4. In any event, since the appeal should (279) have been docketed here at the first term beginning after the trial below, it was the duty of the appellant at such first term to file all of the transcript that was available, and have asked for a certiorari to complete the transcript. His failure to do so is a lack of diligence and forfeits his appeal. Brown v. House, 119 N.C. 622; Haynes v. Coward,116 N.C. 840; Graham v. Edwards, 114 N.C. 228; Sanders v. Thompson, 114 N.C. 282; S. v. James, 108 N.C. 792; Collins v.Faribault, 92 N.C. 310, and there are still other cases. There are some matters at least which should be deemed settled and this is one of them.

Certiorari denied and appeal dismissed.

Cited: Morrison v. Craven, post, 329; Critz v. Sparger, 121 N.C. 283;Rothchild v. McNichol, ib., 284; Parker v. R. R., ib., 504; McMillan v.McMillan, 122 N.C. 410; Norwood v. Pratt, 124 N.C. 746, 747; Benedictv. Jones, 131 N.C. 475; Worth v. Wilmington, ib., 533; S. v. Telfair,139 N.C. 555; Slocomb v. Construction Co., 142 N.C. 350; Walsh v. Burleson,154 N.C. 175; Mirror Co. v. Casualty Co., 157 N.C. 30; Caudle v.Morris, 158 N.C. 595; Hawkins v. Tel. Co., 166 N.C. 214; TransportationCo. v. Lumber Co., 168 N.C. 61; Land Co. v. McKay, ib., 85; S. v. Trull,169 N.C. 370.