168 S.E. 199 | N.C. | 1933
The case was tried September-October Term, 1932, Johnston Superior Court, and nonsuited at the close of plaintiff's evidence. Appeal duly noted. Upon failure of plaintiff to bring up and file transcript of record as required by the rules, the American Fire and Marine Insurance Company filed certificate from the clerk and moved to docket and dismiss the appeal under Rule 17. In answer to this motion, the respondent asked forcertiorari to bring up the appeal. The appeal was ordered docketed andcertiorari allowed. Movant requests that order of certiorari be withdrawn; first, because issued without notice and before movant could be heard; second, because appeal had been abandoned; and, third, for the reason that no record proper had been filed upon which said application could be made.
Filing transcript of record proper as basis for certiorari is required to acquaint the Court with knowledge of the pendency of the action, that notice of appeal was duly given, and that the same has not been abandoned.Pittman v. Kimberly,
The certiorari was improvidently granted. Rule 34. Notice is required as well as filing transcript of record proper. It appears that plaintiff had abandoned his appeal and was apparently relying upon a subsequent order of the judge, until the present motion to docket and dismiss the appeal was filed in this Court. *307
The transcript of record filed by movant on its appeal will not ensure to the benefit of respondent, because the two appeals are not from the same judgment. The respondent gave notice of appeal from the judgment of nonsuit. The movant appealed from the order entered sixty days thereafter.
The motion to docket and dismiss plaintiff's appeal is well founded. Respondent's rights, if any he now have, may arise in subsequent proceedings.
Motion allowed.