Board of Commissioners v. Old Dominion Steamship Co.

There was judgment for the plaintiff, and the defendant appealed. At February Term, 1887, of the Supreme Court, the appellant made an application for a writ of certiorari, in aid of its appeal. The Court then delivered the following opinion: This is an application for the writ of certiorari, as a substitute for a lost appeal. The adverse counsel accepted notice of it, but have failed to appear before us and oppose it. It appears from the affidavits filed that the action of theCommissioners of Greenville v. Old Dominion Steamship Company, was tried at the June Term, 1886, of the Superior Court of the county of Pitt; that there was judgment in favor of the plaintiffs, from which the defendant appealed to this Court, and the case stated on appeal was duly prepared and served upon the counsel of the appellees. At their instance, and for their convenience, the time was extended — not for any fixed period within which they might make objections to the case stated on appeal — and they agreed that no objection should be taken on that account, if the appeal failed to reach this Court at the last October Term thereof. No such objections were made until 15 January of the present year, when the appellant's counsel were served with very material objections to the case as stated by them. It also appears that the clerk of the court refused to send up a transcript of the record of appeal, although the appellant's counsel tendered him the fees due him in that respect. The appeal ought regularly to have been brought to the last October Term of this Court. As it was not, it was lost, and we would be strongly *Page 153 disposed to refuse to grant the writ of certiorari as a substitute for the appeal so lost, but for the fact that the delay was allowed at the request of the appellees, and for the ease and convenience of the counsel. It would not be just to allow them to have benefit of their own laches, and therefore we are of opinion that the failure to bring up the appeal regularly is excusable. It would be otherwise if the failure had been for the convenience of the appellant. That the appeal was not brought up to the last October Term without the case settled on appeal, (165) as ought to have been done, if need be, is excusable on the ground of the refusal of the clerk to furnish the transcript of the record, as plainly he ought to have done. Collins v. Faribault, 92 N.C. 310; Pittmanv. Kimberly, ibid., 562; Suiter v. Brittle, 90 N.C. 19. The appellees were not allowed by the agreement to extend the time for making objections to the case stated on appeal, to have but a reasonable extension, as no definite period was fixed. They did not make objections until after the lapse of more than six months! Manifestly, they did not do so within a reasonable time, and they must have been held to have made none at all. The writ of certiorari must issue, directed to the clerk of the Superior Court of the county of Pitt, commanding him to certify to this Court a true transcript of the record in the action in that court above mentioned, including the case stated on appeal by the appellant's counsel therein. Let the writ issue. Upon the return of the writ of certiorari to this term the following opinion was delivered: