Hinnant v. American Fire & Marine Insurance, 204 N.C. 306 (1933)

March 8, 1933 · Supreme Court of North Carolina

204 N.C. 306

O. D. HINNANT v. AMERICAN FIRE AND MARINE INSURANCE COMPANY et al.

(Filed 8 March, 1933.)

Appeal and Error E e — Motion lor certiorari must be supported by transcript of record and appellee must be given notice of motion.

In order to support a motion for certiorari it is required tliat appellant file transcript of tlie record proper and give appellee notice of tlie motion, and appellee’s transcript of record filed on motion to docket and dismiss cannot avail tlie appellant on his motion for certiorari. Rules 17 and 34.

Motion by American Eire and Marine Insurance Company to docket and dismiss plaintiff’s appeal.

The case was tried September-Oetober Term, 1932, Johnston Superior Court, and nonsuited at the close of plaintiff’s evidence. Appeal duly noted. Upon failure of plaintiff to bring up and file transcript of record as required by the rules, the American Eire and Marine Insurance Company filed certificate from the clerk and moved to docket and dismiss the appeal under Rule II. In answer to this motion, the respondent asked for certiorari to bring up the appeal. The appeal was ordered docketed and certiorari allowed. Movant requests that order of certiorari be withdrawn; first, because issued without notice and before movant could be heard; second, because appeal had been abandoned; and, third, for the reason that no record proper had been filed upon which said application could be made.

A. J. Fletcher for movant.

W. P. Ay cod and E. J. Wellons for respondent.

Stacy, C. J.

Filing transcript of record proper as basis for certiorari is required to acquaint the Court with knowledge of the pendency of the action, that notice of appeal was duly given, and that the same has not been abandoned. Pittman v. Kimberly, 92 N. C., 562; S. v. Freeman, 114 N. C., 872, 19 S. E., 630; Baker v. Hare, 192 N. C., 788, 136 S. E., 113; Brock v. Ellis, 193 N. C., 540, 137 S. E., 585. Entries of appeal need not appear in habeas corpus proceedings. In re Croom, 175 N. C., 455, 95 S. E., 903.

The certiorari was improvidently granted. Rule 34. Notice is required as well as filing transcript of record proper. It appears that plaintiff had abandoned his appeal and was apparently relying upon a subsequent order of the judge, until the present motion to docket and dismiss the appeal was filed in this Court.

Tbe transcript of record filed by movant on its appeal will not enure to tbe benefit of respondent, because tbe two appeals are not from tbe same judgment. Tbe respondent gave notice of appeal from tbe judgment of nonsuit. Tbe movant appealed from tbe order entered sixty days thereafter.

Tbe motion to docket and dismiss plaintiff’s appeal is well founded. Respondent’s rights, if any be now have, may arise in subsequent proceedings.

Motion allowed.