Brafford v. . Reed

Furches, J. The transcript of appeal in this case was received by the Clerk of this Court on Tuesday morning a short time before ten o’clock, and in time to have been docketed before the call of the Eighth District. When the package containing the transcript was received by the Clerk, the attorney of the appellant was present and said to him: “Give me the ease; I don’t want it docketed.” The Cle.rk handed him the case and he took it out with him. In a few moments the conn- *346 sel for tbe appellee inquired of tbe Clerk if be bad received tbe transcript in tbis case, and be told bim that be bad, and stated to bim wbat bad taken place between bim and tbe appellant’s counsel. Counsel for tbe appellee insisted that tbe case should be docketed, and tbe Clerk sent to tbe appellant’s counsel for tbe transcript and put it on bis docket. Wben tbe docket for tbe Eigbtb District was called tbe matter was brought to tbe attention of tbe Court, and tbe appellee’s counsel contended that tbe case was docketed and moved to dismiss tbe appeal for tbe reason tbat tbe record bad not been printed, while tbe appellant’s counsel contended tbat it was bis appeal and be had a right to control tbe matter, and did not want it docketed at tbat time, as be would not have time to have the record printed before tbe case would be called; tbat as be bad a right to control it and bad directed tbe Clerk not to docket the case, it was not in fact or in law docketed. As tbis point bad not been directly before the Court, it reserved the question for consideration in conference, where it was held tbat wben a case on appeal comes into the possession of tbe Clerk it is bis duty to docket it at once, and it will be deemed to be docketed from tbat time; that wben tbe transcript reaches tbe Clerk it then becomes a record of tbis Court, and neither the counsel of the appellant nor of the appellee has any control over it. While the question is not directly decided, it is strongly sustained in Caldwell v. Wilson, 121 N. C., 423. Tbe Court having held tbat tbe case was docketed, the ap-pellee’s motion to dismiss for the reason tbat tbe record bad not been printed, as required by Rule 30, would have been allowed, but for the fact tbat tbe counsel for tbe appellee failed to comply with Rule 45 by filing bis motion in writing. Tbe case will therefore stand continued for such further action as the parties may be advised and as the Court may deem proper.