Robertson v. Stone, 2 N.C. 462, 1 Hayw. 462 (1796)

Oct. 1796 · North Carolina Superior Court

2 N.C. 462, 1 Hayw. 462

Robertson v. Stone.

„ The appellant applied in time to the clerk for the papers, but could not procure them. The papers were, however, brought up after the 151 h day before the Urm, and a motion was made to have them filed Upon the motion’s being opposed by the appellee, it was refused upon the ground that the party had his remedy against the clerk. It seems if there had been no remedy against the clerk, the papers might have been filed.

This was an appeal from a verdict in Person County Court. , The appellant applied in time to the clerk of the County Court for the papers, but could not procure them. The papers, however, were brought up after the fifteenth day before the term, and the appellant mo\ed to have them filed, and the cause placed on the trial docket. And now at this ti rm, the appellee came in to shew cause against the motion. He insisted that if the appellant could not procure the papers from the clerk of the County Court, as he alleged, that was no reason for setting the cause now down for trial, as the act of 1777, c. 2, sJ87, had expressly provided for such a case ; u¡miely, that the clerk should forfeit fifty pounds to the appellant, and also all damages sustained by reason of such delay or refusal.

Fer curiam

A case happened some time ago at Eden-ton, which has been cit'd as the ground of this application ; in that case the appellant offered his appeal papers to the. clerk of the, Superior Court in the streets, not at his office, and the clerk for that reason refused to receive them, apprehending he was not bound to receive them but in his office ; and the court ordered the appeal papers to be filed, being of «pinion the appellant had no remedy against the clerk. In ibis case, as be has a remedy prescribed by law, it is proper he shall pursue that. Were his case such as siiewed hint to have been guilty of no neglect, and at the same time that he. had no remedy against the officer, the court would sustain his appeal to prevent a failure of justice, but that is not the present case.

The motion was overruled. — It might, perhaps have been improper to allow of filing the- papers by way of appeal, for the appellee might have been at the office ort the 15th day before term, to know whether they were filed o> not; but quere, if they might not have been brought up by certiorari, et vide ante, Chambers v. Smith.

Note. Vide Hord v. Orr, N. C. Term Rep. 151, where this case is recognized and confirmed.