Abell v. Thornton Light & Power Co.

BROWN, J., dissenting. The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE WALKER. Action for goods sold and delivered, tried before a justice of the peace, 16 May, 1911, when judgment was rendered for the plaintiff. Notice of appeal given at once by defendant, and, defendant alleges, the fee for docketing appeal was paid. On 7 July, 1911, defendant inquired of the justice if the case had been sent up and docketed, who answered that it had not been returned to court, because fees were not paid. The fee was then paid, with a request that return be sent up and docketed, so that the case would stand for hearing at the next term, which commenced on 10 July, 1911. The justice, immediately made out the return and delivered it to the clerk of the Superior Court, who, by inadvertence, misplaced it, so that it could not be found at July term. The case was not docketed at that term, nor was there any motion to docket, nor any application for arecordari. No action was taken at July term. The return (349) of the justice to the appeal was found by the clerk about 1 October, 1911, and the case was then docketed, the next term being the one which commenced on the 30th day of that month, at which term the plaintiff moved to dismiss the appeal. The motion was granted, and defendant appealed. There is no error in this ruling.Ballard v. Gay, 108 N.C. 544. *Page 282 The case is governed in every respect by Peltz v. Bailey, 157 N.C. 166, and the cases therein cited. This Court referred, in the opinion delivered by the Chief Justice in Peltz v. Bailey, to Davenport v. Grissom,113 N.C. 38, and held, under the authority of that case and others, that "An appeal from the judgment of a justice of the peace, rendered more than ten days before the next ensuing term of the Superior Court, should be docketed at that term, and an attempted docketing at a subsequent term is a nullity. Hence, that such an appeal was not in the Superior Court, and the plaintiff could not take a nonsuit. The judge properly held that he `had no discretion to permit the appeal to be docketed at a subsequent term to the one to which it should have been returned. The appellant had his remedy (if in no default) by an application for a recordari at the first ensuing term of the Superior Court after appeal taken. Boing v. R. R., 88 N.C. 62.' This case has been cited since with approval. Pants Co. v. Smith,125 N.C. 588; Johnson v. Andrews, 132 N.C. 380; Johnson v. Reformers,135 N.C. 386; Blair v. Coakley, 136 N.C. 407; McKenzie v. Development Co.,151 N.C. 278." The case of Davenport v. Grissom, 113 N.C. 38, seems to be directly against the contention of the appellant. It is supposed that this case bears a close resemblance to Johnson v.Andrews, 132 N.C. 380, but we do not think so. The facts of the two cases are materially different. Johnson v. Andrews is distintinguished [distinguished] by the Chief Justice in McKenzie v. Development Co., supra, and Peltz v. Bailey, supra, from those cases and the others we have cited. It rests upon its own peculiar facts. In that case the appellant had done all that the law required of him, and he was misled by a statement of the clerk, made, as it turned out, inadvertently, but not less positively, that the appeal had been docketed, when in fact (350) it had not been. We held this to be excusable, as the failure to docket was the fault of the clerk, and appellant proceeded thereafter, without laches, in ignorance of the true situation. But no such case is presented here. The appellant, it is true, paid the justice his fee, and requested him to make return to the appeal, which he did. Appellant did not tender the fee for docketing to the clerk. He inquired of him if he had docketed it, and was told that it had not been, nor had the return been received. This was both before the July term and during the term, and appellant had ample time to supply the missing document. The clerk was mistaken as to the fact, and the return was in his office, but he was not mistaken when he told the appellant that the appeal had not been docketed, and when informed of the fact it was the plain duty of the appellant to see that it was docketed at that term. But he took no steps by applying to the justice for another return, or by filing a verified copy, under leave of the court, or by *Page 283 application for a recordari, or in any other way. This was not such diligence on his part as the law required of him. In Johnson v. Andrews the appellant believed that the appeal had been docketed, as he had been so informed by the clerk, while in this case the appellant knew that his appeal had not been docketed and was not likely to be, as the clerk had so told him, and he did not move in the matter. These facts differentiate the two cases. In Johnson's case the appellant did all that prudence required of him, but in this case he failed to do so. The result of the decisions is that where the judgment is rendered by the justice more than ten days before the term of the Superior Court to which the appeal is taken, the return must be made to that term, and it is the duty of the appellant, in the use of proper diligence, to see that the case is properly entered upon the docket, and if it is not, he loses his appeal, unless he applies at that term for a recordari, or takes such other steps as are necessary to have it done. After the return term, the judge has no discretion which he can exercise in his favor. Johnson v. Andrews was an exceptional case, but this is not. No error.