25 S.E. 858 | N.C. | 1896
It appears that the judgment was filed below 24 August, 1896, and the appellant filed his appeal bond August 31. The appellant avers that he directed the clerk to send up the transcript forthwith, but does not specify at what time. The clerk of the court below certifies that the appellant's counsel did not send the fees for making up the transcript to him until 1 October, and then for the first time directed the transcript to be made out, and that on October 6th. The said counsel directed him to send the transcript up on October 10th by express, which he did. To these statements of the clerk there is no denial. It also appears that in the same express package there came the transcripts in two other cases. All three cases were delivered to (108) the clerk of the court on Monday, 12 October, by whom they were docketed simultaneously. When the three cases were called the other two, by the care of the appellants therein, were properly printed and were argued, (one of them on 13 October, the same day this case was called), but in this case, the record not having been printed, the Court would not hear the appeal, and the appellee was compelled either to continue or move to dismiss. He took the latter course, as was his right.
The appellant has shown no good cause for reinstatement. He does not deny the clerk's averment that the transcript was not directed to be sent up till 1 October (though the judgment had been filed 24 August), and that thereafter he directed it to be sent up on 10 October, which was done. Other cases sent up in the same package were printed and heard, and there is no reason shown why that was not done in this case. If a party will delay sending up his transcript to the last minute he should either send it up with the requisite parts of the record printed, or arrange to have it promptly done here. It is inexcusable for an appellant to delay docketing his appeal till the time between the docketing and calling the case for argument is perhaps too brief to print the record.
In Avery v. Pritchard,
Every presumption is in favor of the correctness of the result of the trial below. When a party is sufficiently dissatisfied to desire it reviewed on appeal, he should pursue the orderly steps requisite for that purpose. If he does not think the matter of sufficient importance to *66 require that much attention, and this neglect on his part must either impose six months delay on the appellee or a dismissal of the appeal on himself, he must not grumble that the penalty falls upon the one who alone could have prevented the default.
MOTION DENIED.
Cited: Ice Co. v. R. R.,
