Johnson v. Covington, 178 N.C. 658 (1919)

Nov. 12, 1919 · Supreme Court of North Carolina

178 N.C. 658

EDITH JOHNSON v. L. S. COVINGTON et al.

(Filed 12 November, 1919.)

Appeal and Error — Rules of Court — Motions—Dismiss Appeal — Certificate— Transcripts — Clerks of Court.

Tbe clerk of the Superior Court, upon payment of the costs of the certificate, is without authority to refuse to sign the appellee’s certificate, under Rule IT, to docket and dismiss the appeal in the Supreme Court for the appellant’s failure to docket his appeal under the rule, and his refusal to do so, based upon the ground that appellant had paid him on account for making out the transcript, is an attempt to pass upon the rights of the parties on questions reserved for the Supreme Court: it being required of the appellant in such cases, either to apply for a certiorari, or answer ap-pellee’s motion and show cause why his appeal should not be dismissed.

Motiow by tbe defendant to docket and dismiss tbe appeal of plaintiff’ under Rule 17 of tbis Court.

McIntyre, Lawrence & Proctor for appellee.

No counsel for■ appellant.

Pee CuRiam.

This case was tried at March. Term, 1919, of Rich-MOND. On motion of the defendant the plaintiff was nonsuited at the close of the evidence and appealed. The case on appeal was agreed and filed in the office of the clerk of the Superior Court , of Richmond some months ago.

The transcript on appeal, not having been docketed here in the time required at this term, the appellee prepared the certificate required by Rule 17 for this motion and forwarded the same to the clerk of Richmond with request to sign the same. The clerk of Richmond telephoned the defendant’s counsel, who resided in Robeson, that the plaintiff’s counsel had two weeks previously come to his office and paid him $20 on account for making out the transcript, and requested him to prepare the same, and declined to sign and return the certificate.

This action of the clerk was entirely without authority, and the ap-pellee was entitled to said certificate upon application and payment of the costs of the certificate. It was for this Court, and not for the clerk below, to decide upon the rights of the parties as to the motion to dismiss. If this were not true, it would be in the power of a clerk below to control the course of appeals to this Court.

It would seem that the appellant was in laches for putting off his application for the transcript of the record until just before the time when it should have been sent up, though the appeal was taken in March last, and he was further in laches that when the clerk delayed in making out the transcript he did not take steps to have it made out himself and certified to by the clerk. If there was any valid excuse the appellant should have filed his application for a certiorari, in apt time, in this Court or have answered the motion to dismiss under Rule 17 by showing cause.

The rights of the appellee cannot be thus denied, and the motion to dismiss under Rule 17 must be granted.

Motion allowed.