State v. Farmer, 188 N.C. 243 (1924)

Sept. 24, 1924 · Supreme Court of North Carolina
188 N.C. 243


(Filed 24 September, 1924.)

Appeal and Error — Rules of Court — Rocketing Appeals — Certiorari— Record Proper.

The rules of practice regulating the docketing of appeals in the Supreme Court will be enforced uniformly regardless of any agreement to the contrary that the attorneys for the parties may have made in any particular case; and when for any reason the case itself may not reasonably have been docketed by the appellant within the time prescribed by the rules, he must docket the record proper within that time, and move for a cer-tiorari, which may be allowed by the court on sufficient showing made. Constitution, Art. IV, sec. 8.

MotioN to reinstate the appeal of Charles Farmer, dismissed at the present term of the Court for failure to comply with the rules of the Court, the cause not having been docketed here at the term next succeeding the trial and sentence.

It appears from an inspection of the record now offered that defendant was convicted at January term of Wayne Superior Court of murder in the second degree, and was then and there sentenced to. the penitentiary for not less than ten nor more than fifteen years; that the trial was concluded and judgment entered on the closing day of the Superior Court term, to wit, 2 February, 1924, and this Court convened for Spring Term, 1924, on 5 February; that no record or ease on appeal was docketed nor any motion here made in the case prior to 1 September, 1924, after the commencement of the Fall Term of this Court, 1924. The appeal having been dismissed, there was motion by defendant to reinstate; the same is denied.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

Murray Allen and J. Faison Thompson for defendant.

*244Hoke, C. J.

It is the established rule of our procedure that an appeal from a judgment rendered prior to the commencement of a term of this Court must be brought’ to the next succeeding term of this Court, and in order to a hearing in regular order, the same shall be docketed seven days before the calling of the docket of the district to which it belongs, with the proviso to Rule 5, in Yolume 185 of the Reports, that appeals in civil causes from the First, Second, Third, and Fourth Districts, tried between the first day of January and the first Monday in February, or between the first day of August and the fourth Monday in August are not required to be docketed at the immediately succeeding term of this Court, though if docketed in time for hearing at said first term, the appeal shall stand regularly for argument. In numerous decisions of the Court dealing directly with the subject, it has been held that these rules governing appeals are mandatory and must be uniformly enforced, the only modification permitted or sanctioned by these decisions being to the effect that where from lack of sufficient time or other cogent reason, the case on appeal may not be in shape for docketing in the time required, the appellant may within such time docket the record proper and move for a certiorañ, which may be allowed by the Court on sufficient showing made.

In the recent case of Byrd v. Southerland, 186 N. C., 385, it was held: “That the rules of practice in the Supreme Court regulating appeals are mandatory on all appellants alike, and are necessary for the proper and expeditious consideration of causes by the Supreme Court.” And in the Per Curiam opinion prepared by our late Chief Justice it is said among other things: “The necessity of rules of practice, and our power to prescribe them, and the necessity of our uniformly enforcing these rules so there may be no waste of time (which should otherwise be given to the argument of causes), by discussing whether counsel was excusable in the neglect to observe the regulations, has been repeated by this Court so often that it ought not to be necessary for us to repeat it.” And to the same effect are S. v. Butner, 185 N. C., 731; S. v. Dalton, 185 N. C., 606; Cooper v. Commissioners, 184 N. C., 615; Rose v. Rocky Mount, 184 N. C., 609; Mimms v. R. R., 183 N. C., 436; S. v. Ward, 180 N. C., 693; S. v. Trull, 169 N. C., 363-370; Lee v. Baird, 146 N. C., 361-363. And many such cases could be readily cited.

In S. v. Butner, supra, it was said: “Besides, we have often held, and ought not to be called on to repeat, that when for any really excusable ground a 'case on appeal’ is not made up in time, the appeal should be docketed nevertheless at the regular time and an application made for a certiorari. It is out of the power of the judge or solicitor to dispense with the rule of this Court requiring such docketing at the time prescribed by the rules of this Court. "While the Legislature can extend *245tbe time for settling a case on appeal, it cannot impinge upon tbe rules of this Court (Herndon v. Ins. Co., 111 N. C., 384), specifying tbe time in wbicb an appeal must be docketed, unless tbe Court shall see fit to grant a certiorari, wbicb is a matter witbin its discretion.”

In S. v. Dalton: “Tbe decisions of tbis Court have been uniform tbat on failure to docket tbe appeal in tbe time prescribed it will be docketed and dismissed unless a motion is made for certiorari at tbe next succeeding term and sufficient cause shown for tbe failure.”

In Cooper v. Commissioners, supra, it was said: “The rules of practice in the Supreme Court expressly require petitions for rehearing to be filed witbin forty days after the filing of the opinion in the case. 174 N. C., 841, Rule 52. In Lee v. Baird, 146 N. C., 363, Holce, I., said: ‘There is no doubt of the power of the Court to establish the rules in question, and in numbers of decisions we bare expressed an opinion both of their necessity and binding force. Thus, in Walker v. Scott, 102 N. C., 490, Merrimon, J., for the Court, said: ‘The impression seems to prevail to some extent tbat the rules' of practice prescribed by tbis Court are merely directory; tbat they may be ignored, disregarded and suspended almost as of course. Tbis is a serious mistake. The Court has ample authority to make them. Const., Art. IV, sec. 12; Code, sec. 691; Rencher v. Anderson, 93 N. C., 105; Barnes v. Easton, 98 N. C., 116. They are deemed essential to the protection of the rights of litigants and the due administration of justice. They bave force, and the Court will certainly see tbat they bave effect, and are duly observed whenever they properly apply.’ ”

In Rose v. Rocky Mount, supra, it was held: “Appeals to tbe Supreme Court are only witbin tbe rights of tbe parties when tbe procedure is in conformity with tbe appropriate statutes or rules of court, and neither tbe parties in litigation nor their attorneys bave authority, by agreement among themselves, to disregard tbe rules regulating appeals in tbe Supreme Court; and where tbe appellant has failed to docket bis appeal or move for a certiorari under tbe rules regulating tbe matter, tbe appeal will be dismissed.”

In Mimms v. R. R., 183 N. C., 436, Associate Justice Stacy, delivering tbe opinion, said: “It also appears tbat tbis case was tried in April, 1921. Tbe appeal, therefore, should bave been docketed and beard at tbe last term; or, at least, tbe record proper should bave been seasonably docketed here and motion duly made for a certiorari. Tbis latter writ is a discretionary one, and counsel may not dispense with it by agreement. In re McCade, ante, 242; S. v. Johnson, post, 730; S. v. Hooker, post, 763.” And quotes with approval from Trull's case, as follows: “We note tbat tbis trial was bad in June, 1914. Under tbe statute and rules of tbe Court tbis appeal was required to be docketed at tbe fall term of tbis *246Court before the call of the docket of the district to which it belongs, under penalty of dismissal. Rules 5 and 7, 140 N. C., 540, 544; Rev., 591; Pittman v. Kimberly, 92 N. C., 562, and numerous cases thereto cited in the Anno. Ed., and Burrell v. Hughes, 120 N. C., 277, citing numerous eases, and with numerous annotations in the Anno. Ed. It appears in the record that the solicitor agreed with the prisoner’s counsel that the case might be postponed and docketed at this term (Spring Term, 1915). This was an irregularity, and was beyond his authority. The statute must be complied with and the cause docketed at the next term here after trial below. If in any case there is any reason why this cannot be done, the appellant must docket the record proper and apply for a certiorari, which this Court may allow, unless it dismisses the appeal, and may then set the case for trial at a later day at that term or continue it, as it finds proper. It is not permitted for counsel in a civil case, nor to the solicitor in a State case, to assume the functions of this Court and allow a cause to be docketed at a later term than that to which the 'appeal is required to be brought by the statute and the rules of this Court.”

Recurring to the facts as presented in the record, this cause was tried and determined on 2 February, 1924. The next term of this Court commenced on 5 February. There was no appeal or record docketed nor any motion for certiorari or other made till 1 September, 1924, after the commencement of the Fall Term, and under the rules, as stated, the appeal must be dismissed. We do not- discover an instance when this ruling has been departed from.

It is urged for appellant that the case required six days for its trial, constituting a voluminous record, and it was impossible to have prepared a case on appeal within the time required by the rule, and that the Statutory time allowed for serving case and countercase would not permit the docketing of the case seven days before the calling of the district. While this would present cogent reason for granting a writ of certiorari on proper application, it does not relieve appellant of the requirement that the record proper be docketed within the time, and the writ of certiorari applied for.

It is only by timely issuance of this writ that an extension of time can be procured, and this is by no means a formal and meaningless requirement. By application for certiorari the cause is brought within the cognizance and control of the Court, and a criminal cause can thereby be brought up and heard at a day certain or at furthest at the end of the appeals from the Twentieth District, as provided in Rule No. 6. Its proper issuance is essential to give this Court proper control of the action of the lower courts as provided and contemplated by Art. IV, secs. 8 and 12 of the Constitution, and the principles which apply to it and the *247decisions of tbe Court concerning it are just as imperative as tbe time fixed for docketing a perfected appeal under tbe express terms of tbe rule.

Again it is insisted that by agreement between counsel for appellant and the solicitor, the time for preparing the case on appeal was extended beyond the opening of the fall session of tbis Court, and tbat as a matter of fact the solicitor of the district is still engaged in preparing the countei’Gase for the State on defendant’s appeal. But sucb a position cannot for a moment be allowed. These rules, prepared pursuant to the powers vested in tbis Court by the Constitution, and designed to promote the expeditious and orderly bearing of causes on appeal, are in no wise subject to the agreement of counsel. As beld in Rose v. Rocky Mount, supra, neither parties litigant nor their attorneys have authority by agreement among themselves to disregard them.

Both positions of appellant come clearly under tbe condemnation of tbe authorities heretofore cited and must, therefore, be overruled.

While for tbe reasons and on tbe authorities stated we are constrained to adhere to our decision dismissing tbe appeal, owing to tbe great importance of tbe questions involved, we have examined tbe case on appeal prepared by defendant and submitted as tbe principal basis for bis motion to reinstate, and tbe issue of defendant’s guilt or innocence seems to have been fairly submitted to tbe jury, and even on defendant’s statement, reversible error has not been clearly shown.

Motion to reinstate is

Dismissed. •