Mitchell v. Baker, 129 N.C. 63 (1901)

Oct. 1, 1901 · Supreme Court of North Carolina
129 N.C. 63
MITCHELL v. BAKER

MITCHELL v. BAKER.

(Filed October 1, 1901.)

1. CERTIORARI — Laches—Practice—Supreme Court — Writ.

Where an appeal is docketed and printed before the call of a district at a term of the Supreme Court, a motion for a writ of certiorari must be made at least at the call of the district at that term.

2. EXCEPTIONS AND OBJECTIONS — Instructions—Appeal—The Code, Sec. 550.

An exception to the “charge as given" will be disregarded on appeal, except where the charge involves but one proposition of law.

ActioN by A. Mitchell against J. E. Baker and wife, heard by Judge O. H. Allen and a jury, at December (Special) Term, 1900, of the Superior Court of Lenoik County. From a judgment for the defendants, the plaintiff appealed.

Shepherd & Shepherd, for the plaintiff.

N. J. Bouse and J. Tí. Pou, for the defendants.

OlaRií,' J.

The appellant moves for a writ of certiorari for an amendment in the case on appeal upon a statement *64from the trial Judge that he is willing to make it. The motion comes too late. The appeal was docketed and printed before the call of the district at last term, and with proper diligence the motion should have been made in time to have the case heard at last term, or at least at the call of the district at that term. It is laches to wait till this term, with the result that if allowed there would be another delay of six months. He who seeks a certiorari must negative laches. State v. Griffis, 117 N. C., 709; Peebles v. Braswell, 107 N. C., 68.

The sole exception in the case on appeal is “to the charge as given.” That this is too general and must be disregarded is apparent upon the face of the statute. (The Code, sec. 550), which requires that exceptions shall be specifically stated, and the point has been ruled in over fifty cases, many of which are collected in Clark’s Code (3d Ed.), pages 513, 514 and 773.

The only exception to this rule is, when there is only one proposition of law in the charge, but that is not the case here.

There being no exceptions in the case on appeal, and no errors upon the face of the record proper, the judgment below is

Affirmed.