104 S.E. 528 | N.C. | 1920
The defendants filed motion Tuesday, 5 October, 1920, at 9:30 a.m., to docket and dismiss the appeal in this case. The plaintiff filed his transcript on appeal thereafter at 11:15 a.m. the same day.
Rule 5 of this Court (
This rule has been often before us for construction. One of the most recent cases is Cox v. Lumber Co.,
In Hawkins v. Tel. Co.,
In these cases the Court hold that it is not discretionary with us to refuse to dismiss, which we cannot do unless "sufficient legal excuse is shown."
It admits of a mild surprise that withstanding the rule so plainly stated, and so uniformly enforced, that any appellant should fail to docket a case within the ample time allowed by the rule, and if he fails to do so should seek to be excused from the consequences of his neglect. Truelove v.Norris, supra.
The appellant seeks to distinguish this case on the ground that the 8th and 9th districts are docketed in the same week, and the appeals from the 9th are not called before Wednesday. But all the cases from *662 both districts are required to be docketed for the same week, and transcripts are required to be filed "seven days before entering upon the call of the docket. Under Rule 7, the "docket" is called in its order, but for convenience only, cases from the 9th district are not heard before Wednesday (and hereafter not before Thursday). But this did not give appellant until Wednesday of the week preceding to docket cases from the 9th district. It would be as admissible to contend that inasmuch as the cases from the 8th district cannot in fact be called before Thursday or later, if toward the end of the docket, therefore, the transcript in those cases need not be docketed more than 7 days before they are actually called for argument.
Owing to the uncertainty as to the application of the rule when the docket for the week includes two districts, it will not apply to this case, nor to any other cases at this term docketed 7 days before beginning the call of the second district (if from that district), when there are two districts assigned to the same week. But after this term, all appeals from any district must be docketed by 10 a. m. of Tuesday of the preceding week.
Motion denied.
Same decision denying motion to dismiss in Campbell v. Pearce, No. 301.