Rose v. . Rocky Mount

Sep 13, 1922

Versions:184 N.C. 609

113 S.E. 506

1922 N.C. LEXIS 134

Per Curiam.

Thе summons in this case was issued 6 October, 1919, and tbe cause was tried at Novembеr Term, 1921. Tbe appeal should have been docketed here at last term, but it was not docketed until this term. It has been too often held, to be a mаtter of debate, that an appeal is not a matter of right, but is.allowеd upon conformity with tbe provisions of law and tbe rules of tbe Court, which, if not complied with, tbe cause is not legally in this Court and cannot be considerеd by us.

*610 In Mimms v. R. R., 183 N. C., 436, at last term, it was held as a settled rule of this Court that “where a case on appeal has not been docketed by appellant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍within the timе required in the rule of practice in the Supreme Court, and a motion was not made at that time for a certiorari, the appeal will be dismissed”; and the consent of parties for such failure to docket in apt time will not justify it. Stacy, J., in the opinion in that case, referring to the decisions, said: “The statute must be comрlied with, and the cause docketed here at the next term after the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍trial below. If in any case there is any reason why this cannot be done, the appellant must docket the record proper (at the proрer time) and apply for a certiorari, which this Court may allow, unless it dismisses the appеal, and may then set the case for trial at a later day at that term or continue it as it finds proper.' It is not permitted for counsel in a civil case, nor to the solicitor in a State case, to assume the functions оf this Court and allow a cause to be docketed at a later term than that to which the appeal is required to be brought by the statute and the rulеs of this Court.” To the same purport at the last term was S. v. Johnson, 183 N. C., 730; S. v. Brown, ibid., 789; S. v. Barksdale, ibid., 785.

At a preceding term the same ruling was upheld in Buggy Co. v. McLamb, 182 N. C., 762; Kerr v. Drake, ibid., 766 (in which the matter was again fully discussed); Tripp v. Somerset, ibid., 767. These are some of the cases within the last year. Besides, it has been the uniform ruling of this Court always, of which ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍counsel must take notice, that parties have no authority to make any agreement to disregard a statute or the rules of Court.

While Magna Carta did not originate, or require, trial by jury, as at one time was thought, it is very certain that it did guarantee that there should be a prompt administration of justice by providing (сh. 47) that the courts will neither sell justice nor deny it nor delay it, and a delay of justiсe is often a denial of justice.

It would be impossible to have an orderly and regular dispatch of business in the courts if the parties either themselves or through their counsel (who certainly have no greater authority than thе parties ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍themselves) can, to suit their own convenience or whim, set аside at their will the regulations governing litigation, and taking the matter out of the hands of the courts, substitute their own agreements.

When an appeal is not dоcketed here in the time required, the party or his counsel should apply for a certiorari at that time, for then the Court, on hearing the grounds ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for failure to docket, can adjudge whether a certiorari should issue or the cause be dismissed. The Court does not favor even these applications, for it is not very often the case that the *611 cause cannot be prepared and doсketed in tbe time required by statute and tbe rules of tbis Court.

It is not often tbat counsеl are so overwhelmed witb business tbat tbey cannot attend, in tbe required time, to docketing an appeal, and wben tbis occurs there are a suffiсient number of lawyers who can be called in to tbe aid of their brethren whо are so overwhelmed at tbe moment tbat tbey cannot wade through tbe swollen tide of business tbat surrounds them. It is much better tbat in these emergencies аid should be sought from their brethren of tbe bar, who are not lacking either in ability оr numbers, than tbat counsel should, by private agreements, interfere witb tbe ordеrly procedure and practice of tbe courts in disregard of tbe prescribed regulations.

Appeal dismissed.