MacKenzie v. Davidson County Development Co.

Clark, C. J. The plaintiff obtained judgment before a justice of the peace in Guilford on 23 March, 1909. A term of the Superior Court for said county began on 29 March. A regular term for two weeks began on 12 April. On the tenth day after the judgment the defendant paid the justice thirty cents, the justice’s fee for a return to the appeal, and fifty cents, with request to send it to the clerk, to docket -the appeal. This the justice did not do. The appeal was not required to be docketed at the March term, as it began within less than ten days after the judgment. But it should have been docketed at the April term. This not having been done, the appellant, if in no default, should have asked at that term for a recordari. Boing v. Railroad, 88 N. C., 62; Blair v. Coakley, 136 N. C., 409; Lentz v. Hinson, 146 N. C., 31. Or he could have'compelled the justice to make his return by attachment. Revisal, sec. 1493, provides: “The justice shall, within ten days after the service of notice of appeal on him, make a return to the appellate court and file with the clerk thereof all papers, proceedings and judgment in the case, with the notice of appeal served on him. He may be compelled to make such return by attachment.” The appellant did not try to docket the appeal nor avail himself of cither of the remedies allowed by law if he was unable to do so. Nineteen days after the April term adjourned, the appeal was at last docketed, on the first day of the term of the Superior Court beginning 15 May. Revisal 1905, see. 607, provides: “That if the appellant shall fail to have his appeal docketed, as required by law, the appellee may, at the next term of said court *278 next succeeding tbe term to wbicb tbe appeal is taken, bave tbe case placed upon tbe docket, and, upon motion, tbe judgment of tbe justice shall be affirmed and judgment rendered against tbe appellant accordingly.” Revisal, sec. 608, provides: “When tbe return is made, tbe clerk of tbe appellate court shall docket tbe case on bis trial docket for a new trial of tbe whole matter at tbe ensuing term of said court.” The appellant did not comply with tbe statutory requirements as to appeals. Merely praying an appeal is insufficient. He must personally see that tbe appeal is perfected. These sections of tbe Revisal mean that tbe appeal must be docketed at tbe next ensuing term, and an attempted docketing at a later .term is a nullity. In Davenport v. Grissom, 113 N. C., 38, it was held that tbe judge “bad no discretion to permit tbe appeal to be docketed at a subsequent term to the one to wbicb it should bave been returned,” and that “tbe attempted docketing at such subsequent term was a nullity.” This ruling has been cited and approved. Pants Co. v. Smith, 125 N. C., 590; Johnson v. Andrews, 132 N. C., 380; Johnson v. Reformers, 135 N. C., 386; Blair v. Coakley, 136 N. C., 407; McClintock v. Ins. Co., 149 N. C., 35. In Hawks v. Hall, 139 N. C., 176, relied on by tbe appellant, tbe appeal was docketed in apt time and tbe appellee entered a general appearance, but after tbe case bad been on docket for several terms moved to dismiss because tbe return to tbe appeal bad not been signed by tbe justice of the peace. In Johnson v. Andrews, 132 N. C., 376, tbe appellant paid tbe clerk bis fee and tbe clerk told him tbe case was docketed. It being a criminal term, no civil docket was made up, and tbe appellant having done all in bis power, and being in no laches, tbe court held that tbe appeal should not bave been dismissed. But here tbe appellant did not pay tbe clerk bis fee for docketing, and- let tbe two weeks of April term pass by without any effort to get tbe appeal docketed, though tbe statute required it should be docketed at that term. As this Court has said, in Pepper v. Clegg, 13 N. C., p. 316. “If a person has a case in court, tbe best thing be can do is to attend to it.” Tbe payment of tbe clerk’s fee to tbe justice cannot avail him, for this should bave been paid to tbe clerk, and its payment to tbe justice merely made tbe justice bis agent. If he has lost any rights, be has lost them through the carelessness of bis agent and bis own neglect to avail himself of tbe remedies of recordari and attachment that tbe law gives him. He cannot now be beard to complain, for, as tbe Court says, in Fain v. Railroad, 130 N. C., 31, be was tbe actor, the mover in all this matter. Affirmed.