Boing v. Raleigh & Gaston Railroad

Ruffin, J. If, as we suppose, His Honor’s ruling rested upon the idea that, conceding the facts to be as alleged by the defendant, they furnished no excuse for its laches or grounds for the relief asked, we feel constrained to give it our concurrence. In Webb v. Durham, 7 Ired., 130, it was held that whenever a writ of recordari was asked for, as a substitute for an appeal, the application should be speedily made; and that any delay, after the earliest moment in the party’s power to apply, must be satisfactorily accounted for. It was also held in Hahn v. Guilford, 87 N. C., 172, that an appeal meant an appeal to the next term of the appellate court, and that it was the duty of the party to see that the justice *64 transmitted the case; and if not done, to move promptly, and at the very first term, for a writ of recordari. So far from accounting for the delay of this defendant, the facts show it to have been positively negligent and remiss, in that, three terms were allowed to pass without its taking the pains to know that its appeal had been docketed. That an attorney had been employed to conduct the defence, furnishes no sort of an excuse for such remisness as this. The neglect of counsel will sometimes be accepted as an excuse, if it relates to a matter purely professional, and which the party cannot perform for himself; but never, when he is capable of acting for himself and by himself. This distinction is clearly drawn in Bradford v. Coit, 77 N. C., 72, and it would be singular, indeed, if it were not so, or that a party should be excused for not doing that which he ought to have done and might have done, simply because he had trusted to another to do it for him. There are other grounds upon which the judgment below might have been made to stand, but the laches of the defendant is sufficient, and we prefer to put our approval upon that alone, so that it may be understood what degree of diligence is expected in all such cases — it being just the same which this court exacts of parties who apply here for writs of certiorari. Brown v. Williams, 84 N. C., 116; Hahn v. Guilford, supra. No error. Affirmed.