McMillan v. McMillan, 122 N.C. 410 (1898)

March 29, 1898 · Supreme Court of North Carolina

122 N.C. 410

W. D. McMILLAN v. H. J. McMILLAN et al.

(Decided March 29, 1898.)

Certiorari — Appeal.

Ail appellant is entitled to a certiorari upon docketing a certificate from the clerk of the Superior Court stating the names of the parties, that a judgment was rendered and an appeal taken, and that the transcript of the record proper was not sent up because the judge had the original papers to settle the case on appeal, such certificate being accompanied by appellant’s affidavit negativing laches.

Civil action tried before Robinson, J., at Term of Pender. Superior Court. From a judgment for the plaintiff the defendants appealed, and in this Court moved for a writ of certiorari to bring up the record and case on appeal.

Messrs. Ricaud & Bryan for plaintiff.

Mr. John D. Bellamy for defendants (appellants).

Per Curiam:

The appellant dockets a certificate from the clerk stating the names of the parties to the case, and that a judgment and an appeal had been taken therein, and that the transcript of the record proper could not be sent up because the Judge had the original papers to settle the “ case on appeal,” and had not sent them back, nor any ‘ ‘ case settled. ” The appellant files his affidavit negativing laches and averring merits in his appeal. He is entitled to the certiorari asked for. Of course, if the original papers were in the clerk’s office below, he should have docketed a transcript of the record proper and have moved upon that for a certiorari for the case on appeal. Burrell v. Hughes, 120 N. C., 217; Critz v. Sparger, 121 N. C., 283. The appellant has docketed all he could get, and is in no laches.

Motion allowed.