Craddock v. Barnes, 140 N.C. 427 (1906)

Feb. 27, 1906 · Supreme Court of North Carolina

140 N.C. 427

CRADDOCK v. BARNES.

(Filed February 27, 1906).

Rocketing Appeal — Motion to Dismiss.

1. Where a ease was tried below in the fall and docketed in this court three days before the district was called at the opening of the spring term, a motion on the first day of the spring term to dismiss the appeal because not docketed seven days before the call of the district as required by rule 5, will be denied.

2. The ruling, that though an appeal is not docketed seven days before the call of the district to which it belongs, as required by rule 5, it will not be dismissed (when docketed at the next term here after the trial below) if it is docketed before the motion is made to dismiss, applies to the first as well as the other districts, as the appellee can file his motion to dismiss with the clerk whether the court is in session or not.

ActioN by H. D. Craddock against Priscilla Barnes and others, beard at the Fall Term, 1905, of the Superior Court of Washington. This was a motion of the defendants, appellees, to dismiss the appeal because not docketed as required by Rule 5 of the Supreme Court.

Aydlett & Ehringhaus for the plaintiff.

W. M. Bond and H. S. Ward, for the defendant.

Per Curiam:

This case, from the First District, was tried below last fall and was docketed here three days before the district was called at the opening of this term. The appellee moved on the first day of this term to dismiss the appeal because not docketed seven days before the call of the district as required by Rule 5. We have held that though the appeal is not docketed seven days before the call of the district to which it belongs, it will not be dismissed (when docketed at the next term here after the trial below) if it is docketed before the motion is made to dismiss. Curtis v. Railroad, 137 N. C., 308; Benedict v. Jones, 131 N. C., 474, and other cases there cited. The appellee contends that these decisions ought not to apply to the First District because if they do an appellant from that district can always obtain six months delay by docketing later than seven days before the call of the district, and thus the case will not stand for hearing at this term, and yet the appellee cannot move to docket and dismiss if the appeal is docketed before court meets for this term, since court not being in session till the day the call of the Fii'fet District begins, the appellee will have no opportunity to move to dismiss till after the appeal is docketed.

There would be great force in this suggestion but for the fact that if the appeal is not docketed seven days before the call of the district to which it belongs the appellee can file his motion to dismiss with the clerk whether the court is in session or not. He need not file it in open court. This is true of any district. When the call of the district begins the motion should-then be called to our attention if not before, and if it antedates the docketing of an appeal which was not docketed seven days before the call of the district, the motion to dismiss must be allowed. Here the appeal was not docketed seven days before the call of the district. The appellee, instead of filing his motion then with the clerk, did not file it till the first day of this term, when the call of that district began and after the appeal had been docketed. His motion to dismiss comes too late.

Motion Denied.