Sneed v. State Highway Commission

Stacy, O. J., after stating the case: It is the position of the plaintiff that as the defendant failed to have the clerk “transfer the case to the civil-issue docket for trial of the issues at the next ensuing term of the Superior Court” (C. S., 634), it has lost its right of appeal, and that by analogy to an appeal from a justice of the peace, where the appellant fails to have his appeal docketed as required by law, the appellee may, at the term of court next succeeding the term-to which the appeal is taken, have the case placed upon the docket (C. S., 660), and the judgment affirmed upon motion. Blair v. Coakley, 136 N. C., 405. But the analogy, we apprehend, fails in at least two respects. In the first place, the appeal is controlled by C. S., 633, which requires the clerk, upon notice, to transmit the entire record to the Superior Court, and neither party is obliged to give an undertaking for costs. R. R. v. R. R., 148 N. C., p. 64; Hendricks v. R. R., 98 N. C., 431. In the second place, the judge of the Superior Court, in the exercise of his supervisory *48 power, may require the clerk to send up the appeal, or transfer the case to the civil-issue docket for trial, which seems to have been done in the instant proceeding. Sicks v. Wooten, 175 N. C., 597; R. R. v. King, 125 N. C., 454. And in the third place, the agreement of counsel on both sides to waive the filing of formal exceptions, and that appeals should be taken only in those cases where the awards, after investigation, were found to be unsatisfactory, would seem to take the case out of the hard and fast rules of procedure, if such they be. Taylor v. Johnson, 171 N. C., 84. But plaintiff’s appeal to this Court is premature, being, as it is, from an interlocutory order, and for this reason it must be dismissed. We have thought it better, however, to express an opinion on the question sought to be presented, a course sometimes pursued where the matter is of moment, and a decision, as here, may save the parties further litigation. Taylor v. Johnson, supra. Appeal dismissed.