Cox v. Pruett, 109 N.C. 487 (1891)

Sept. 1891 · Supreme Court of North Carolina

109 N.C. 487

W. E. COX et al. v. MARTIN PRUETT et al.

Appeal — Certiorari.

The Supreme Court will not grant the writ of certiorari as a substitute for an appeal where the petition fails to show that the appellant took an appeal, and caused the proper entries and notice thereof to be given within ten days after the rendition of the judgment or of notice thereof; the simple allegation in the petition that appellant within the ten days caused a notice of appeal to be placed in the hands of the Sheriff, and that it was served, is not sufficient.

Application for certiorari.

Messrs. R. A. Doughton and A. D. Jones, for plaintiff.

Mr. Q. F. Neal, for defendant.

MerrimoN, C. J.:

This is an application for the writ of certiorari as a substitute for an appeal lost.

The petition alleges that within ten days next after the petitioners had notice of the order complained of, they placed a notice of an appeal in the hands of the Sheriff to be served on the plaintiffs in the action, and that it was served. But it is not alleged, nor does it at all appear, that the petitioners took an appeal within ten days after notice, or within ten days after the rendition of such order, nor is it alleged, nor does it appear; that within that time the appellant caused his appeal to be entered by the Clerk on the Judgment Docket and notice thereof to be given to the adverse party, as required by the statute (The Code, §550). On the contrary, it appears by the affidavit of the Clerk that no notice of appeal ever went to his office. It is not alleged, noi; does it appear, that the adverse party in any way prevented the petitioners from taking an appeal within the time allowed by law. It does not appear that the petitioners ever took an appeal, nor is any proper reason assigned why they did not or could not. Clearly, the petitioners are not entitled to have their prayer granted.

Petition dismissed.