Carroll v. Victory Manufacturing Co.

Pee CubiaM. Tbe defendants filed motion Tuesday, 5 October, 1920, at 9 :30 a. m., to docket and dismiss tbe appeal in tbis case. Tbe plaintiff filed bis transcript on appeal thereafter at 11:15 a. m. tbe same day. Eule 5 of tbis Court (174 N. C., 828) provides: “Eule 5. When heard. Tbe transcript of tbe record on appeal from a judgment rendered before tbe commencement of tbe term of tbis Court must be docketed at sucb term 7 days before entering upon tbe call of tbe docket of tbe district to wbicb it belongs, and stand for argument in its order; if not so docketed, tbe case shall be continued or dismissed under Eule 17, if tbe appellee files a proper certificate prior to tbe docketing of tbe transcript.” Tbis rule has been often before us for construction. One of tbe most recent cases is Cox v. Lumber Co., 177 N. C., 227, a case “on all fours” with tbis, in wbicb tbe reasons for tbe rule, and tbe necessity for its observance were again fully discussed, with citations of authorities, and tbe appeal was dismissed. In Hawkins v. Tel. Co., 166 N. C., 213, it was held “tbe transcript must be filed before Tuesday, 10 a. m., of tbe week preceding tbe call of tbe docket, citing many cases, to wbicb we refer as evidence of tbe uniform practice of tbis Court. Among numerous other cases to tbe same purport, Truelove v. Norris, 152 N. C., 755, and Hewitt v. Beck, ib., 757, in both of wbicb we .said, as in many other cases, that tbis is a duty personal to tbe appellant, and is not excused by tbe neglect of bis counsel, who in tbis matter is “tbe agent or attorney in fact of bis client, and bis negligence is tbe negligence of tbe appellant.” Nor would tbe delay of tbe O. S. 0. be an excuse, for tbe appellant should docket tbe title of tbe case with affidavits as to tbe cause of tbe delay, and apply for a certiorari. In these cases tbe Court bold that it is not discretionary with us to refuse to dismiss, wbicb we cannot do unless “sufficient legal excuse is shown.” It admits of a mild surprise that notwithstanding tbe rule so plainly stated, and so uniformly enforced, that any appellant should fail to docket a case within tbe ample time allowed by tbe rule, and if be fails to do so should seek to be excused from tbe consequences of bis neglect. Truelove v. Norris, supra. Tbe appellant seeks to distinguish tbis case on tbe ground that tbe 8th and 9th districts are docketed in tbe same week, and tbe appeals from tbe 9th are not called before Wednesday. But all tbe cases from *662 both, districts are required to be docketed for the same week, and transcripts are required to be filed “seven days before entering upon the call of the doclcet.” Under Rule 1, the “docket” is called in its order, but for convenience only, cases from the 9th district are not heard before Wednesday (and hereafter not before Thursday). But this did not give appellant until Wednesday of the week preceding to docket cases from the 9th district. It would be as admissible to contend that inasmuch as the eases from the 8th district cannot in fact be called before Thursday or later, if toward the end of the docket, therefore, the transcript in those cases need not be docketed more than I days before they are actually called for argument. Owing to the uncertainty as to the application of the rule when the docket for the week includes two districts, it will not apply to this case, nor to any other cases at this term docketed 7 days before beginning the call of the second district (if from that district), when there are two districts assigned to the same week. But after this term, all appeals from any district must be docketed by 10 a. m. of Tuesday of the preceding week. Motion denied. Same decision denying motion to dismiss in Campbell v. Pearce, No. 301.