Erwin v. Erwin, 14 N.C. 528, 3 Dev. 528 (1832)

Dec. 1832 · Supreme Court of North Carolina

14 N.C. 528, 3 Dev. 528

William G. Erwin v. Sarah Erwin.

An appellant who has failed to file his appeal, is not entitled to a certiorari, after a delay of three terms. He should apply at the first term, unless prevented by accident.

This was an application for a rule upon the defendant, to show cause why a certiorari should not issue. The applicant swore, that the judgment against him was rendered at the Spring Term 1831, of Rutherford Superior Court; that he then prayed an appeal, which was allowed; that the appeal bond and the record of the cause were sealed up, and deposited in the Post-office at Rutherfordton, the postage being paid, directed to the Clerk of the Supreme Court, in time to reach the office of that court, within the first seven days of the ensuing term ,• that not hearing of any adjudication in the cause, he had, since the last term of the court, caused enquiries to be made, from which he learned that the package above mentioned, bad never come to the hands of the Clerk of the Supreme Court.

No counsel appeared for the applicant.

Ruffin Judge.

The appeal was taken in April, 1831, and this application for a certiorari is now made —in December 1832, eighteen months, after the record ought to have been filed in this court. We do not think proper to consider whether the grounds laid for the relief asked, would have been sufficient, liad the motion been made at an earlier and proper period. For the motion comes out of due time, and must on that ground, be refused.

It is true, the party swears, that since the last term, he learned for the first time, that the transcript had miscarried. But his duty was to have enquired earlier; to attend to his cause, in person or by attorney, at the first term (unless prevented by accident;) and then to have taken the necessary steps to have the case brought up and decided.

By the course of the court, the application for this extraordinary remedy must be made as soon as the party • can, after losing the benefit of his appeal. It can no more be granted to one who is dilatory in asking for it, than it can be to one who has neglected to pray an appeal when in his power. He who fails from negligence, duly to. prosecute an appeal, is as little entitled to aid, as he who from the same cause, failed to obtain an appeal. The rule is therefore refused.

Per Curiam. — Ruxe refused.