Davis v. Marshall, 9 N.C. 59, 2 Hawks 59 (1822)

June 1822 · Supreme Court of North Carolina

9 N.C. 59, 2 Hawks 59

Davis v. Marshall and Russell.

From Warren.

1lh.cn n. p.'Jilj’ appc-Hnni', tle'icnJc/l upon f'c Clerk of Hie county Ooixi"'. “i 1:> acted as ■■ ■ c-¿jxiíy Clerk e" ice !'u; erar Coi N, to Miiif np an sippcid, ami the Cleik oí' the County Í ’mo! a as la tise liabit of ittlng’hi.y up aU appeals and Lad, fcj’ineily, bí<i;ig'!ri up one fot' the: present anrol'ant, but on thip oc-c: ■ en oniibed it, ¡.trough forgetful ness, it vas held, that the iK-ifilgcnee of the appellant, was such, that lie was not entitled to a certiorari.

A judgjiieiit having; been ©bivjiwd pgsmsat the Defend ant, Marshal!, in the cotfey Oocri of Tfeivea, a %vii oí ca. sa. issue's! thereon, a*ad B'ir,Mrasim:'! gave bond purweMit to the provisions of the Muí: far fee i-cafei of honest ddsfe'-sfe its which the ISrfutid,«it, Ifesseí.’., bcoarae surety. This bond was rfennued is 'Ccnsfe and, m the ab» Share of Tare!" fe!, a fed ynerfe a an wwfeened Mraiusi Russo! 5, who, on a SMbse.pioife, ifey of (S'a ter is moved to set aside the judyurtoni, an.í Íhat Sac Einwyhi: be permití»:? to surrender Marshall, in dfeefesige of Itknsellf, The County Const; refused to :~y*-int sise motion, ami ütassd! ■appealed!. At list', succeeding ierm of the oEpoirkn;, Court of Warren, as the transcript of the record had not boon filed with the Cleric of that Court, ífessdü prayed the presiding Judge, for a writ of certiorari,, and íHed ar, affidavit, stating the foregoing facts, »«d aico, that he !md believed the Clerk of the County Court wouM bring up the transcript, particuiarlj, as lie had so done for the afiiaut, on a former occasion. Ke read, dso, the aiSikw vit of tho Clerk of Use County Cowl, stating that lie acted as Clerk of the County Court., and Deputy Gierk of the Superior Court, that it was Mo usual practice,, on. appeals from the Court below, to prepare the tr&UGcript and file ii; himself, in the office of tho Superior Coart, •without w ailing for aa application to do so by the appellants | that on a former occasion he had doae so, for the Defendant, Marshall, and was prevented, by hurry and oversight, from pursuing a similar course on this occasion.

rpjie prcsi(]jrig Judge refused to grant the writ of certi-orari, and the Defendant appealed.

Hall, Judge,

delivered the opinion of the Court.

It seems that the Appellant made no effort, cither to bring up the appeal himself, or cause it to he done by any other person. He depended upon the Clerk of the County Court, he says, to bring it up, because (as the Clerk admits) he had been in the habit of bringing up all appeals taken from the County Court, but omitted, through forgetfulness, to bring up this one. Other instances of forgetfulness like this, to which the human character is liable, particularly as a good deal might be depending upon it, should have taught the Appellant the necessity of attending to the business himself. In cases of such negligence, this Court cannot interfere, and however much it may regret it, it must say that the writ of certiorañ cannot be granted.