143 S.E. 139 | N.C. | 1928
Civil action for libel, tried at the August Term, 1927, Cabarrus Superior Court, upon issues raised by the pleadings, which resulted in a verdict and judgment for the defendants, from which the plaintiff appeals, assigning errors.
Upon the call of the docket from the district to which the case belongs, there was a motion by defendants to dismiss the appeal for failure to prosecute same as required by the Rules of Practice in the Supreme Court. This motion was allowed.
The plaintiff then moved to reinstate the appeal for cause set out in the motion. This was a civil action tried at the August Term, 1927, Cabarrus Superior Court, which was a three weeks term, commencing 15 August and ending 3 September. The case was tried during the first week of the term and resulted in a verdict and judgment for the defendants. Judgment was signed 27 August, 1927. The plaintiff gave notice of appeal to the Supreme Court, and was allowed 50 days within which to prepare and serve statement of case on appeal, while the defendants were allowed 30 days thereafter to file exceptions or counter statement of case. There was no application for a certiorari at the Fall Term, 1927, of this Court, the next succeeding term commencing after the rendition of the judgment in the Superior Court, and the term to which the appeal should have been brought.
True, the August Term of Cabarrus Superior Court at which the case was tried did not adjourn until after the commencement of the Fall Term of this Court on 29 August, 1927. But under C. S., 613 "judgments rendered in any county by the Superior Court, during a term of the court, and docketed during the same term, or within ten days thereafter, are held and deemed to have been rendered and docketed on the first day of said term." Rule 5 of the Rules of Practice in the Supreme Court (
The single modification of this requirement, sanctioned by the decisions, is, that where, from lack of sufficient time or other cogent reason, the case is not ready for hearing, it is permissible for the appellant, within the time prescribed, to docket the record proper and move for a certiorari, which motion may be allowed by the Court in its discretion, on sufficient showing made, but such writ is not one to which the moving party is entitled as a matter of right.
Indeed, if the record and transcript are not docketed here at the proper time and no certiorari is allowed, the court below, on proof of such facts, may, on proper notice, adjudge that the appeal has been abandoned, and proceed in the cause as if no appeal had been taken. Dunbar v. TobaccoGrowers,
We have held in a number of cases that the rules of this Court, governing appeals, are mandatory and not directory. They may not be disregarded or set at naught (1) by act of the Legislature, (2) by order of the judge of the Superior Court, (3) by consent of litigants or counsel. The Court has not only found it necessary to adopt them but equally necessary to enforce them and to enforce them uniformly.
On facts identical in principle with those appearing on the present record, the appeal in the case of Stone v. Ledbetter,
No sufficient cause having been shown to warrant a reinstatement of the appeal, the motion to this effect must be denied.
Appeal dismissed.
Motion to reinstate disallowed. *612