Critz v. Sparger, 121 N.C. 283 (1897)

Sept. 1897 · Supreme Court of North Carolina
121 N.C. 283
CRITZ v. SPARGER

CRITZ v. SPARGER.

Practice — Certiorari—Verification of Petition — Th'anscript of Record — Failure to File Transcript — Laches—Docketing Appeal.

1. When the petition for a certiorari is not verified as required by Rule 42, and no transcript of the record proper is filed, and no sufficient reason is given for the failure to docket the reed’d and case on appeal, the motion will he denied.

2. The failure of the Clerk below to send up the transcript after the case on appeal had been filed in his office will not excuse appellant’s failure to have the transcript or case on appeal filed, where there is no allegation that the appellant had tendered the fees for such transcript and was otherwise free from laches.

3. Where a case ’was tried below after the commencement of the Term of this Court to which the appeal was taken, appellant is not prejtt-diced by a t efusal of his motion for a certiorari returnable at such Term, but may docket his appeal at the next Term.

MotioN of appellant for writ of certiorari.

Messrs. Jones & Patterson, for defendant (appellant).

No counsel, contra.

Clark, J.:

Tlie petition is not verified as demanded by Rule 42 and there is no transcript of the record proper, nor reason given for its absence and nothing to negative laches in not having that, and the case on appeal also, docketed. Burrell v. Hughes, 120 N. C., 277 and cases cited; Brown v. House, 119 N. C., 622; Parker v. Railroad and Rothchild v. McNichol, the last two at this term. It is true it is alleged that the case on appeal was filed in the Clerk’s office and that the Clerk has failed to send up the transcript, but there is no allegation that the appellant has tendered the fees and is otherwise free from laches. Brown v. Blouse, supra and cases cited.

It may be that this case was tried below since the present *284term of this Court began; if so, the appellant was not required to docket his appeal at this term (Rule 5) though it would stand for trial at this term if it reached here in time (Avery v. Pritchard, 106 N. C., 344) and the appellant is in no wise prejudiced by the refusal of his motion for the writ of certiorari, but may docket his appeal if such is the case, at the next term of this Court.

Motion denied.