62 S.E. 775 | N.C. | 1908
Judgment was taken before a justice of the peace 8 September, 1906. An appeal was taken in open court and the transcript on appeal was promptly sent to the clerk of the Superior Court. At August Term, 1907, the appeal not having been docketed (though in the interim five terms of the Superior Court had been held), the appellee moved to docket and dismiss. This motion was continued from term to term till January Term, 1908, when it was allowed. At no time prior to August Term, 1907, did the appellant ask to docket the appeal, or for a recordari.
Revisal, sec. 607, provides, "If the appellant shall fail to have his appeal docketed as required by law, the appellee may, *27
at the term of said court next succeeding the term to which the (36) appeal is taken, have the case placed upon the docket, and upon motion, the judgment of the justice shall be affirmed." The dismissal of the appeal had the same effect. Revisal, sec. 608, required this appeal to be docketed "at the ensuing term" of the appellate court, if more than ten days after judgment. Pants Co. v. Smith,
It is true, the judge finds that the clerk was in the custom of docketing such appeals without requiring payment of fees, that the clerk was in bad health and the docket was crowded. For these reasons, the judge in his discretion, might (if the delay in docketing was not too gross) have allowed a motion to docket nunc pro tunc. Marsh v. Cohen,
As this Court has often stated, "if a person has a case in court the best thing he can do is to attend to it." Pepper v. Clegg,
Affirmed.
Cited: McKenzie v. Development Co.,
(37)