Gupton v. Sledge, 161 N.C. 213 (1912)

Nov. 20, 1912 · Supreme Court of North Carolina

161 N.C. 213

J. P. GUPTON et al. v. W. T. SLEDGE et al.

(Filed 20 November, 1912.)

1. Appeal and Error — Time for Docketing — Motion to Dismiss — Ap-pellee’s Laches.

When, appellant’s case is not docketed seven days before the call of the district in the Supreme Court to which it belongs, and the appellee fails at that time to move to dismiss, the latter is in laches, and the appellant can docket his case, if this is done before motion to dismiss is made.

2. Same — Subsequent Term — Practice.

Appellant being allowed to docket his case, owing to appellee’s laches, too late to be heard at the term to' which it belongs, appellee’s motion to dismiss for failure to print briefs and record should be made at the next term at the time required.

3. Appeal and Error — Service of Case — Time Extended by Agreement — Power of Court — Judgments.

When time to serve case on appeal has been extended, by consent of counsel, beyond that which the statute allows, and it appears that appellant had not served his case within the time agreed upon and appellee’s counsel has accepted service thereof, reserving his objection as to the time of service, the trial judge is without authority to settle the case, and upon no error being found on the examination of the record proper, the judgment below will be affirmed.

Appeal from W. J. Adams, J., at May Term, 1912, of Catawba.

W. II. Ycurborough, Jr., Councill & Yount, and 1V. H. Ruffin for plaintiffs.

W. A. Self for defendants.

Clare:, 0. J.

Tbe plaintiff moved to dismiss because tbe transcript on appeal was not docketed seven days before tbe call of tbe docket of tbe district to wbicb it belongs. Tbis motion was denied, for, tbougb tbe record was not tben docketed as required, tbe appellee did not move to dismiss at tbat time, but delayed to make bis motion till tbe call of tbe district was begun, at wbicb time tbe case bad been docketed. Tbe appellee being in lacbes himself, tbe appellant could docket bis case at any time at tbis term, if before tbe appellee moved to dismiss. Benedict v. Jones, 131 N. C., 473; Laney v. Mackey, 144 N. C., 630.

Tbe case thus being docketed, tbougb too late for bearing at tbis term, a motion to dismiss for failure to print tbe record and file printed brief cannot avail, as these things are required to be done at tbe timé required before tbe call for bearing at tbe next term.

Tbe appellee further moves, however, to affirm because there is no case settled on appeal, and the appellant moves for a cer-tiorari to have the case settled. The facts are that the case was tried at May Term, 1912, of Catawba, which adjourned on 15 May, 1912. By consent, thirty days was allowed the appellant to serve case on appeal, which was afterwards extended by consent ten days longer. This time expired 4 July. The appellant did not attempt to serve ease on appeal till 6 July, when the appellee’s counsel accepted service, reserving, however, his objection that the time had expired. The judge when appealed to properly refused to settle the case, upon that ground. The time in which the “case on appeal” must be served is fixed by statute, and the court cannot extend it. Cozart v. Assurance Co., 142 N. C., 522, and cases cited. When a different time is substituted by the agreement of the parties, the court cannot extend that time. Ib. The appellant shows no action on the part of the appellee which caused him to delay serving his case' on appeal within the stipulated time. Nor is there any exception in appellant’s case on appeal which would justify a new trial. Upon examination of the record proper, we find no error, and the judgment below must be

Affirmed.