Hawkins v. Western Union Telegraph Co.

Per Curiam. This cause was tried at January term of Craven, beginning 5 January, 1914. Prom tbe verdict and judgment the defendant appealed. Under Rule 5 of this Court, 164 N. C., 540, the transcript of the record should have been docketed by Tuesday of the week preceding the call of the Fifth District, to which it belonged, that is, on or before 24 February, 1914, and if not docketed at that time the appellee had a right to docket the clerk’s certificate and dismiss under Rule 17 at any time thereafter during the term (164 N. C., 544), provided the motion was made before the appellant docketed his appeal. The appellee filed his motion to that effect on Monday, 2 March. The appellant docketed his record on 3 March, and on call of the docket on Tuesday, 3 March, the cause was accordingly dismissed. This is a motion to reinstate said appeal, upon notice given under Rule 18. The right of appeal, as we have often held, is not an absolute right, but must be exercised in accordance with the rules and regulations prescribed. This subject is fully discussed and settled in every aspect by the opinion and decision in Vivian v. Mitchell, 144 N. C., 472, in which the Court cites, among other cases, Harrison v. Hoff, [214] 102 N. C., 25; Jones v. Asheville, 114 N. C., 620; Pain v. Cureton, ib., 606; Mortgage Co. v. Long, 116 N. C., 17; Barber v. Justice, 138 N. C., 20; Craddock v. Barnes, 140 N. C., 427; Cozart v. Assurance Co., 142 N. C., 523; and the Court added: “Tbe decisions to tbis effect have been uniform and so often repeated that of late years tbe Court bas usually contented itself by following tbe precedents, without opinion, by a per curiam order.” Tbis course bas usually been followed since, tbougb that case was cited and approved in opinions in Laney v. Mackey, 144 N. C., 631, and in Truelove v. Norris, 152 N. C., 757; Hewitt v. Beck, ib., 759. In tbe latter case, as in tbis, tbe appellant sought to excuse himself because there bad been delay in “settling tbe case,” without any fault on bis part. But tbe Court held, in accordance with our uniform decisions, that in such case it is tbe duty of tbe appellant to docket tbe transcript of tbe record proper, in tbe proper time, to get a foothold in tbis Court, and only when that is done can be ask for a certiorari to procure tbe transmission of tbe “case on appeal,” when it bas not been sent up by reason of tbe delay of tbe judge in settling tbe case on appeal, or for other cause not attributable to tbe laches of the appellant. In Burrell v. Hughes, 120 N. C., 277, it is said, citing many cases, “There are some matters which should be deemed settled, and tbis is one of them.” Tbis case lias been often cited since. See Anno. Ed. Tbe motion to reinstate is denied. Motion denied.