British & American Mortgage Co. v. Long, 116 N.C. 77 (1895)

Feb. 1895 · Supreme Court of North Carolina

116 N.C. 77

BRITISH AND AMERICAN MORTGAGE COMPANY v. LONG et al.

Practice — Appeal—Dismissal—Motion to Re-instate.

1. Where a motion is made to docket and dismiss an appeal, under Rule 17, for failure of the appellant to docket the same, the excuses for such failure should then be made.

2. In the absence of a request from or agreement with the appel-lee that an appeal should not be docketed, the fact that negotiations were pending- for a compromise is no good excuse for appellant’s failure to docket the appeal and a motion to re-instate will not be allowed.

Civil ACTION, heard at May Term, 1894, of Halifax Superior Court, before -, J. There was judgment for the plaintiff and defendants appealed, but the appeal having been dismissed, under Rule 17, for failure to docket the same, a motion to re-instate the appeal was made at September Term, 1894, of this Court and continued to this Term.”

Mr. B. 0. Burton, for plaintiff.

Mr. J. B. Batchelor, for defendants (appellants).

Clark, J.:

This is a motion to re-instate the case, which was docketed and dismissed by appellee at last Term, under Rule 17. A motion was made at that time, by appellants, for a certiorari-, but it appearing to the Court, by affidavit of the Clerk below, which was not controverted, that the appeal had not been sent up because the Clerk had repeatedly demanded his fees for the transcript, which appellants had failed to pay, the certiorari was refused. Bailey v. Brown, 105 N. C., 127; Andrews v. Whisnant, 83 N. C., 446; Sanders v. Thompson, 114 N. C., 282. If in fact the fees had been tendered, or if there was other good excuse, it should have been shown at the time the motion to docket and dismiss was made. Paine v. Cureton, 114 N. C., 606.

The appellants, later,-at .the same term, moved to reinstate (the motion being continued to this term) on the ground that negotiations were pending for a compromise when the appeal was dismissed. But, in the absence of any request from or agreement by appellee that the appeal should not be docketed, this was no excuse for a failure to docket in proper time. The negotiations could have gone on as well after docketing the appeal as before. In fact, however, the correspondence between the parties shows that the offer to compromise had been made and rejected before the call at last term of the district to which the appeal belonged. Motion Denied.