199 N.C. 788 | N.C. | 1930
From tbe judgment of dismissal entered at the January Special Term, 1930, Wilkes Superior Court, the plaintiffs gave notice of appeal to the Supreme Court, and were allowed ninety days to make out and serve statement of case on appeal, while the defendants were given sixty clays thereafter to prepare and file exceptions or counter-case. Upon disagreement, the case was settled by the judge, 16 July, 1930. There was no application for certiorari at the Spring Term, 1930, of this Court, the next succeeding term commencing after the rendition of the judgment in the Superior Court, the term to which the appeal should have been brought.
Eule 5 of the Eules of Practice in the Supreme Court (192 N. C., p. 841), provides, among other things, that the transcript of record on appeal from a judgment “rendered before the commencement of a term of this Court” must be brought to such term, the next succeeding term, and docketed here fourteen days before entering upon the call of the district to which the case belongs, with the proviso that appeals in civil cases (but otherwise in criminal cases) from the First, Second, Third and Fourth districts, tried between the first day of January and the first Monday in February, or between the first day of August and the fourth Monday in August, are not required to be docketed at the immediately succeeding term of this Court, though if docketed in time for hearing at said first term, the appeal will stand regularly for argument.
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. The issuance of a writ of certiorari, however, does not change the time already fixed by agreement of the parties, or by order of court, for serving statement of case on appeal, and exceptions or counterease. Smith v. Smith, ante, 463.
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. Tobacco Growers, 190 N. C., 608, 130 S. E., 505; Jordan v. Simmons, 175 N. C., p. 540, 95 S. E., 919; Avery v. Pritchard, 93 N. C., 266.
We have held in a number of cases that the rules of this Court, governing appeals, are mandatory and not directory. Calvert v. Carstarphen, 133 N. C., 25, 45 S. E., 353. They may not be disregarded or set at naught (1) by act of the Legislature (Cooper v. Commissioners,
For tbe convenience of litigants, counsel and the Court, a fixed schedule is arranged for each term of the Court and a time set apart for the call of the docket from each of the judicial districts of the State. The calls are made in the order in which the districts are numbered. It can readily be seen, therefore, that, unless appeals are ready for argument at the time allotted to the district from which they come, a disarrangement of the calendar necessarily follows, and this often results in delay and not infrequently in serious inconvenience. The work of the Court is constantly increasing, and, if it is to keep up with its docket, which it is earnestly striving to do, an orderly procedure, marked by a due observance of the rules, must be maintained. When litigants resort to the judiciary for the settlement of their disputes, they are invoking a public agency, and they should not forget that rules of procedure are necessary, and must be observed, in order to enable the courts properly to discharge their duties. Battle v. Mercer, 188 N. C., 116, 123 S. E., 258. The rules have been revised, annotated and republished in the 192nd Beport.
On facts identical in principle with those appearing on the present record, the appeal in the case of Stone v. Ledbetter, 191 N. C., 777, 133 S. E., 162, was dismissed ex m.ero moiu. The present appeal will be treated in like fashion. The following authorities are also in support of this disposition of the case: Pentuff v. Park, 195 N. C., 609, 143 S. E., 139; S. v. Crowder, 195 N. C., 335, 142 S. E., 222; S. v. Surety Co., 192 N. C., 52, 133 S. E., 172; Trust Co. v. Parks, 191 N. C., 263, 131 S. E., 637; Finch v. Commissioners, 190 N. C., 154, 129 S. E., 195; S. v. Butner, 185 N. C., 731, 117 S. E., 163; Rose v. Rocky Mount, 184 N. C., 609, 113 S. E., 506; S. v. Johnson, 183 N. C., 730, 110 S. E., 782; S. v. Barksdale, 183 N. C., 785, 111 S. E., 711; Buggy Co. v. McLamb, 182 N. C., 762, 108 S. E., 344; S. v. Satterwhite, 182 N. C., 892, 109 S. E., 862; Howard v. Speight, 180 N. C., 653, 105 S. E., 35; S. v. Trull, 169 N. C., 363, 85 S. E., 133.
By requesting and consenting to such a long extension of time for settling case on appeal, the plaintiffs put it out of their power to have the case ready for hearing as required by the rules. This, they did at the peril of losing their right of appeal. Trust Co. v. Parks, supra.
We are minded to say, that hereafter, in disposing of appeals for failure to comply with the rules, the Court shall not feel impelled to state the reasons for its decisions, or to file written opinions in such cases. Hence, when a case is dismissed on authority of Pruitt v. Wood (this case), the profession will understand that it is for a failure in some respect to comply with the rules, whether specifically mentioned herein or not, and that the Court cannot pause to discuss the procedural question, but must conserve its time for the consideration of other matters.
Appeal dismissed.
