State v. . Goodlake

ClaRK, C. J. Tbis is a motion to reinstate tbe appeal in tbis case wbicb was docketed and dismissed under Rule 17 on 12 May, 1914, on tbe call of" tbe district to wbicb it belonged. Tbe petitioner files an affidavit tbat be appealed in tbis cause and paid bis counsel to prepare bis case on appeal for tbe Supreme Court and tbe necessary fees for preparing and printing tbe record, and supposed tbe matter bad been attended to. But on 9 May, when be went to tbe office of bis counsel and tendered tbeir fees, be found tbat tbe case bad not been settled on appeal .and tbat tbe transcript'bad not been made out and sent up to tbis Court; tbat consequently tbe record bas not been printed nor any brief prepared. His' counsel thereupon returned to bim tbe $30-tbat be bad tendered tbern on 9 May. Upon tbis showing, tbe defendant' certainly is not entitled to have bis ease reinstated. In. Vivian v. Mitchell, 144 N. C., 476, tbis Court said: “Tbis Court bas often and always held tbat noncompliance with tbe requirements wbicb entitle an appellant to have bis case reviewed cannot be excused because tbe failure to observe them is due to tbe negligence of counsel. If tbis were not so, tbe more negligent counsel could be tbe more they would be in demand by appellants desirous of baffling tbe appellee and adding to tbe ‘law’s delay,’ wbicb tbe great dramatist enumerates among tbe greatest ills tbat ‘flesh is heir to.’ There is no suggestion tbat in tbis case counsel were purposely dilatory or negligent. We feel assured that they were not. But tbe matter of appeal must be regulated, and as a condition precedent to obtaining a review of a case on appeal, those requirements must be observed. If tbe appellant does not himself, or through some agent or attorney, take those necessary steps, and in apt time, tbe judgment below must stand. It is no excuse for a failure to comply with these requirements, these conditions precedent, tbat *436 the appellant’s agent or attorney negligently failed to do what was necessary to entitle him to have his appeal heard. The point is fully discussed in Edwards v. Henderson, 109 N. C., 84, and many cases there cited; Calvert v. Carstarphen, 133 N. C., 26, 27, and cases cited. Indeed, there is nothing better settled.” Hewitt v. Beck, 152 N. C., 758. In Paine v. Cureton, 114 N. C., 606, it was said: “An appellant cannot simply take an appeal and pay the clerk’s fees for transcript and thereafter leave the appeal to take care of itself like a log floating down a river or corn put in the hopper of a mill. The appeal requires attention.” In Edwards v. Henderson, 109 N. C., 84, the Court held that the negligence of counsel in having the appeal sent up and printed and the rules otherwise complied with is not an excuse for the appellant, who should see that the matter was attended to, and if, by any laches beyond his control, this is not done, he should make a motion in this Court at or before the time pre-' scribed for the docketing of the appeal and file the record proper and an affidavit to procure a certiorari to issue if sufficient cause is shown. In this and other cases above cited there are numerous references to other cases of like purport, and the citations to the above cases in the Annotated Reports enumerate many others. The practice is so well settled, and it is so necessary that it should be adhered to, that of late years we have been acting upon the rule thus laid down without filing- an opinion upon a matter so well settled. We dismiss the appeal alike in civil and criminal cases when either the appeal is not taken in time or the record not docketed in time, or the case is not settled in time, or the record or brief of the appellant is not printed or assignments of error are not. made, or there is failure in other respects to observe the requirements for an appeal, unless the record proper is docketed and sufficient excuse is shown by a motion for cer-tiorari and affidavit, at the proper time. In this case none of these things were done. Motion denied.