Pipkin v. . Green

17 S.E. 534 | N.C. | 1893

This is a motion made at September Term, 1892, to reinstate the appeal which had been dismissed at February Term, 1892 (110 N.C. 462), for failure to print, and also for failure to docket at the proper term. The motion to reinstate, when the dismissal is for failure to print, must be made at the same term (Rule 30 of the Supreme Court), and will only then be allowed "for good cause shown." The motion, therefore, comes too late, and must be denied.

The motion, indeed, does not show good cause. Stephens v. Koonce,106 N.C. 255, is in point. Furthermore, notice of the motion to reinstate was not given as required by Rule 30.

This renders it unnecessary to consider the other ground of dismissal — for failure to docket appeal at the next term of the Court after the trial below. We will note, however, that if this was caused by the delay of the judge to settle the case in time, the appellant should have docketed the record proper and have asked for a certiorari for the (356) "case" at such first term thereafter. Pittman v. Kimberly,92 N.C. 562; Porter v. R. R., 106 N.C. 478. Besides, as a motion to reinstate the appeal dismissed on this ground, it is fatally defective for failure to show that the delay to docket the appeal was without laches on the part of the appellant. Simmons v. Andrews, 106 N.C. 201.

MOTION DENIED.

Cited: Graham v. Edwards, 114 N.C. 230; S. v. Freeman, ib., 873;Carter v. Long, 116 N.C. 47; Guano Co. v. Hicks, 120 N.C. 30; Burrellv. Hughes, ib., 278; Parker v. R. R., 121 N.C. 504; Calvert v.Carstarphen, 133 N.C. 26; Howard v. Speight, 180 N.C. 654.