Central Hanover Bank & Trust Co. v. Cooke

BbogdeN, J. The law requires an appeal from a judgment of a justice of the peace to be taken to the next term of Superior Court. "The next term means any term, civil or criminal, which begins after the expiration of the ten days allowed for serving a notice of appeal. An attempted docketing at a subsequent term is a nullity. If the magistrate fails to perform his duty in sending up the appeal, or if the judge is unable to attend the court, the appellant, if in no default, may apply for a recordari at the term first convening after the appeal is taken and thereby preserve his rights.” S. v. Fleming, ante, 40. It has been frequently held that appellant is entitled to a writ of recordari or even of certiorari, in those cases in which the failure to perfect the appeal was due to some error or act of the court or its officers and not to any fault or negligence of the appellant or of his agent. Winborne v. Byrd, 92 N. C., 7; Johnson v. Andrews, 132 N. C., 376, 43 S. E., 926; Bank v. Miller, 190 N. C., 775, 130 S. E., 616. The evidence submitted to the trial judge was conflicting. There was evidence tending to show that the justice of the peace mailed the papers to the clerk, and that they had been received by him. However, the clerk denied that any j)apers had been filed in his office. Hence the findings of fact by the trial judge supported by competent evidence, are conclusive. While the findings are not stated in full detail, nevertheless it cannot be said that they are inadequate as a matter of law. Eley v. R. R. 165 N. C., 78, 80 S. E., 1064. Affirmed.