Truelove v. . Norris

Per. Curiam. Motion to docket and dismiss under Rule 17 for failure to'send up transcript in proper’ time. Also to dismiss under Rule 30 for failure to print record, and under Rule 34 for failure to- print appellant’s brief by noon of Saturday before the call of the district to which this appeal belongs. The appellant’s counsel opposes these motions, and asks to docket the appeal now and to continue the cause. It appears that at November, Term, 1909, of Harnett there was a motion to set aside a judgment which had been rendered at the preceding term. By consent, judgment was to be entered out of term, as of November term. On 10 January, 1910, the judgment setting aside the previous judgment was filed. By agreement of counsel, the record was to constitute the case on appeal and time, was allowed till 10 February to file appeal bond, which was done. The transcript should have been docketed here under Rule 5, by 10 A. M., 8 March, i. e., seven days before the beginning of the call of the district to which the case belongs. This not being done, the appellee could have then docketed and moved to dismiss, and as the appellant’s brief was not printed and filed with the clerk by noon of the following Saturday, the appellee could have then filed his motion in the clerk’s office to dismiss on that ground. Vivian v. Mitchell, 144 N. C., 472; Cozart v. Assurance Co., 142 N. C., 523; Barber v. Justice, 138 N. C., 21. *757 Appellant’s counsel files bis affidavit tbat be asked tbe clerk to send up tbe appeal and said to bim tbat if be wanted bis fees be would pay tbem in advance, and tbe clerk said tbe bond was good and be would send up tbe transcript. Tbe clerk says be bas no recollection of sucb conversation. But it is immaterial bow tbat may be. As we said, in Pain v. Cureton, 114 N. C., 606, even if appellant bad paid tbe clerk’s fees for tbe transcript, be could not “thereafter leave tbe appeal to take care of itself like a log floating down a river or corn put into tbe hopper of a mill.” Tbe appellee bas rights, and among tbem tbe right to have tbe appeal dismissed if not docketed in tbe prescribed time — unless tbe appellant is without laches. It was tbe duty of tbe appellant not merely to ask tbe clerk to- send up tbe transcript, but to see tbat it was sent up in apt time, docketed, printed, and brief prepared and printed. Tbe counsel is merely tbe agent of appellant in tbe duties of sending up, docketing and printing tbe transcript, and bis negligence is tbat of tbe client. This bas been often held. Vivian v. Mitchell, 144 N. C., 477, citing Calvert v. Carstarphen, 133 N. C., 26, 27; Edwards v. Henderson, 109 N. C., 84. Neglect could scarcely have been greater than in this case. Tbe appellant knew not only tbat the transcript should have been sent up before 10 A. M., 8 March, but docketed by tbat time. He took no steps to ascertain tbat these things were done. He knew tbat, in addition, bis brief must be prepared, printed and filed by noon of tbe Saturday following, and tbat tbe transcript must also be printed. He took no steps to these ends.. If an appellant is damaged by tbe negligence of his agent in these matters, bis remedy for any loss is against bis agent. Tbe appellee cannot be deprived of bis rights by tbe negligence of tbe appellant or bis agent. Appeal dismissed.