State v. Williams, 9 N.C. 100, 2 Hawks 100 (1822)

June 1822 · Supreme Court of North Carolina

9 N.C. 100, 2 Hawks 100

State v. Williams.

From Lenoir.

Where any unexpected accident prevents an appellant from bringing up Ws appeal, this Court will grants certiorari,- but when the appellant trusts to another to do what he ought to have done himself and that trust proves to have been improperly placed, he must abide the consequence ; a certiorari will not be granted.

This was an application for a writ of certiorari, on an affidavit of the Defendant, in which he stated, that having appealed from the decision of the Court below, to this Court, and having given bond and security to prosecute ins appeal, he applied, timing the term, to the Clerk below for ■> transcript of the record of the proceedings, in order to convey the same, in due time to Hits Court; that he ®vtg informed by the Clerk that the transcript should be prepared and banded in due time to the counsel of the afila nt, who would carry it: up, and the affiant, knowing’ that his counsel would be at the Court in time to file the record, felt perfect security that it was filed until some days after the session of the Court had commenced, when it was too late to file it.

Hall, Judge,

said, bad any accident happened in this case, over which the Defendant reasonably could not have been expected to leave any control, which prevented him from bringing up his appeal, it would be the duty of this Couid to grant the writ of certiorari, as prayed for $ but. that has not been the case; be trusted to anuí her \,> <]<> what he. ought 1o have done himself, and as that trust has been improperly placed, he mu«t abide the consequence. I think the writ prayed for cannot bo granted.

And of this opinion were the other Jui?e33s„ So the writ was refused-