53 S.E. 239 | N.C. | 1906
This case, from the First District, was tried below last fall and was docketed here three days before the district was called at the opening of this term. The appellee moved on the first day of this term to dismiss the appeal because not docketed seven days before the call of the district, as required by Rule 5. We have held that though the appeal is not docketed seven days before the call of the district to which it belongs, it will not be dismissed (when docketed at the next term here after the trial below) if it is docketed before the motion is made to dismiss. Curtis v. R. R.,
There would be great force in this suggestion but for the fact that if the appeal is not docketed seven days before the call of the district to which it belongs the appellee can file his motion to dismiss with the clerk whether the court is in session or not. He need not file it in open court. This is true of any district. When the call of the district begins, the motion (429) should then be called to our attention, if not before, and if it antedates the docketing of an appeal which was not docketed seven days before the call of the district, the motion to dismiss must be allowed. Here the appeal was not docketed seven days before the call of the district. The appellee, instead of filing his motion then with the clerk, did not file it till the first day of this term, when the call of that district began and after the appeal had been docketed. His motion to dismiss comes too late.
Motion Denied.
Cited: Vivian v. Mitchell,