State v. . CrowderState v. . Crowder
Tbe defendant was tried and convicted, and judgment pronounced on 16 October, 1927, and thеreupon court adjourned. Tbe defendant was allowed forty-five days in which to serve bis case on appeal, and the State thirty days thereafter to serve cоunter-statement or exceptions. The record was voluminous. After the adjournment оf court counsel for the defendant notified the court stenographer to prеpare the transcript of evidence. The stenographer did not live in Hendersоn where the trial was bad. The letter of counsel, notifying her to transcribe the evidence, through inadvertence, was put in the mail box of another person, causing a dеlay of ten days before the receipt thereof by the court stenographer. Thereafter, while engaged in transcribing the evidence, the stenographer suffered a severe cut on her right band, which became infected, and resulted in depriving her of the use of her right arm for several days. Fearing that she would not be able to transcribe the evidence in time, of her own motion, she notified the judge who tried the case and who was then in another district. Without notice to the parties the trial judge sent an order on 12 November, enlarging the time for preparing statement of ease on aрpeal for thirty days beyond the time fixed in the order of court at the time of the trial. Thе
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Solicitor for the State, on 17 November, excepted to said order enlarging 'the time, and on 18 November served notice on the defendant that the State excеpted to the order granting an extension of time for serving the case on appeal. The statement of case on appeal was served on the Soliсitor on 29 December, 1927. The Solicitor filed exceptions. Thereafter, upon disаgreement of counsel, the judge settled the case on appeal on 20 January, 1928. When the case was called for argument in this Court the State made a motion to dismiss the appeal. This motion must be granted and the appeal must be dismissed. The ordеr of the trial judge, made out of the district and without notice to the parties, extending the time for filing the statement of case on appeal, was void.
Cox v. Boyden,
The rules governing appeals are mandatory and not directory. Thus in
Womble v. Gin Co.,
It does not appear from the record when the transcript of evidence was actually delivered to counsel for the defendant by the.court stenographer. Howеver, it does appear that the time specified in the original order for serving statement of case on appeal expired 1 December, 1927. On 18 November, 1927, or twelve days before the expiration of time, notice was served upon the dеfendant that the State excepted to any extension of time and to the order of the judge extending the time. The defendant, therefore, on 18 November, 1927, had an adequate remedy. This Court was in session. The Fifteenth and Sixteenth districts were called in this Court on 21 November, 1927, and the Seventeenth and Eighteenth districts were called on 28 November, 1927. Both of these districts were heard before the time expired for the defendant to file statement of case on appeal. It was therefore the duty of the defendаnt, if he had reason to believe that the statement of case on appеal could not be completed within the time prescribed in the original order, to hаve applied to this Court for a writ of
certiorari.
“A party is entitled to a writ of
certiorari
when — and only when — the failure to perfect the appeal is due to some error or act of the court or its officers, and not to
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any fault or neglect of the party or his agent.”
Womble v. Gin Co.,
Appeal dismissed.