Hardy v. . Heath

Hoke, C. J. From a perusal of tbe affidavits and summary of tbe record now presented it appears tbat tbis was an action of claim and delivery tried and determined at Superior Court of Duplin County, March Term, 1924. Verdict and judgment for defendant. Appeal by plaintiff. By agreement of counsel, time for tendering case on appeal and countercase bas been extended to 13 September, 1924, when tbe papers will be banded to tbe judge for tbe purpose of settling case on appeal, and bis Honor now bas tbe papers for such purpose. Our rules provide in effect tbat appeals in causes tried below during a term of tbis Court shall be brought to such term or tbe next succeeding term, and when to tbe next succeeding term, same must be docketed at *272 such term seven days before tbe call of tbe docket of tbe district to wbicb it belongs. Rules of Practice, 185 N. C., p. 787 et seq. In numerous decisions of the Court in which these rules were construed and applied, it bas been held tbat a record and case on appeal not docketed at the time required by the rule will be dismissed on motion unless the appellant within the time provided shall docket the record proper and apply for a writ of certiorari and thereby obtain an extension of time. S. v. Farmer, ante, 243; S. v. Butner, 185 N. C., p. 731; S. v. Dalton, 185 N. C., p. 605; Rose v. Rocky Mount, 184 N. C., p. 609; Mimms v. R. R., 183 N. C., p. 436; S. v. Johnston, 183 N. C., p. 730; S. v. Brown, 183 N. C., p. 789; S. v. Barksdale, 183 N. C., p. 785; S. v. Ward, 180 N. C., p. 693. In Rose v. Rocky Mount, supra, it was held: “Appeals to tbe Supreme Court are only within tbe rights of tbe parties when tbe procedure is in conformity with the appropriate statutes or rules of court, and neither tbe parties in litigation nor their attorneys have authority, by agreement among themselves, to disregard tbe rules regulating appeals in tbe Supreme Court; and where tbe appellant has failed to docket bis appeal or move for a certiorari under tbe rule regulating tbe matter, tbe appeal will be dismissed.” In Mimms v. R. R., supra: “When a case on appeal bas not been docketed by appellant within tbe time required by tbe rule of practice in tbe Supreme Court regulating it, and a motion bas not been made for a certiorari, it will be dismissed, it being discretionary with tbe Court as to.jvhether the motion for this writ will be allowed, which tbe consent of tbe parties cannot affect.” In S. v. Johnson, supra: “Tbe procedure in tbe Supreme Court is vested by constitutional authority entirely with this Court, without power of tbe Legislature to modify it. Whether the appellant has legal excuse in not docketing his case on appeal in time for it to be regularly heard at the call of the district to which it belongs is a matter- for the Supreme Court to determine upon his docketing tbe record proper and moving for a certiorari under the rule. WTiere tbe appellant bas not docketed tbe record proper and moved for a certiorari under the rules, be may not successfully resist appellee’s motion to dismiss for not having bis case docketed in tbe required time by attempting to show that such failure was caused by the trial judge in extending tbe time for tbe preparation and service of the case and countercase. Semlole, an unreasonable time given for such purpose will not be recognized by the Supreme Court.” In S. v. Brown, supra: “A case on appeal will be dismissed in the Supreme Court when tbe appellant has not conformed to the rule requiring tbat it be docketed in a certain time before tbe call of tbe district, *273 at tbe first term of tbe Supreme Court beginning after tbe trial, and bas failed to apply for a certiorari on good cause shown.” In S. v. Barksdale, supra: “In tbis case, beld tbat tbe appeal be dismissed in tbe Supreme Court on motion of tbe State for tbe failure of tbe appellant to docket bis case at tbe first term of tbis Court beginning after tbe trial below, or apply for a certiorari upon filing a transcript of tbe record proper, in accordance witb tbe requirements of tbe rules of Court regulating sucb matters.” In the case before us, the case on appeal bas not yet been prepared nor bas the record proper been docketed, on wbicb alone an extension of time may be obtained by means of the writ of certiorari. A mere summary of the record taken from the minute docket and consisting chiefly of the names and respective dates of the different processes and pleadings in the cause is by no means a compliance witb thais requirement that the record proper be docketed. Speaking to thais question in S. v. Farmer, supra, the Court said: “It is only by timely issuance of thais writ that an extension of time can be procured, and thais is by no means a formal and meaningless requirement. By application for certiorari, the cause is brought within the cognizance and control of the Court, and a criminal cause can thereby be brought up and beard at a day certain or at furthest at the end of the appeals from the Twentieth District, as provided in Rule No. 6. Its proper issuance is essential to give thais Court proper control of the action of the lower courts as provided and contemplated by Const., Art. IY, secs. 8 and 12, and the principles wbicb apply to it and the decisions of the Court concerning it are just as imperative as the time fixed for docketing a perfected appeal under the express terms of the rule.” And in order to a proper exercise of the discretionary power to issue the writ referred to, it is necessary for the Court to have opportunity to inspect the record proper, which should contain at least the summons, pleadings, verdict and judgment below and any ancillary orders made in. the cause in case the validity of such orders are involved in the appeal. See Cressler v. Asheville, 138 N. C., p. 482. Again, a proper consideration of the authorities cited will disclose that these rules of practice and the decisions concerning them will be uniformly enforced and that even when the record proper has been duly docketed an extension of time for docketing also the case on appeal will only be allowed when good and sufficient cause is shown why there has not been a full compliance with the rule. In the case before us it appears that the cause was heard and determined at March term, Superior Court of Duplin County; that time for serving case and countercase on appeal has been extended by agreement of counsel from time to time *274 through the entire Spring term of the Sixth District, through the summer vacation, and was only submitted for the consideration of the judge below on 13 September, too late for his Honor to have settled the case within the time required by the rule. As said in Farmer’s case, these rules, prepared pursuant to the powers vested in this Court by the Constitution and designed to promote the expeditious and orderly hearing of causes on appeal, are in no wise subject to the agreement of counsel or parties litigant, and no sufficient reason is shown to justify an issuance of the writ of certiorari in the cause even if the record proper had been docketed in apt time. For reasons stated the application for writ is Denied.