Opinion · Supreme Court of North Carolina

Cross v. . Williams

Cross v. . Williams, 91 N.C. 496 (N.C. 1884)

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1884-10-05
Topic
general

Merrimon, J. After the call of causes from the sixth dis *497 trict was concluded at the present term, the appellees in this case filed the certificate of the clerk of the superior ®ourt of Davidson county, from which it appears that a judgment was rendered against the appellants at the spring term, 1884, of that court, from which they took an appeal to this court, that the case upon appeal for this court was settled by the presiding judge on the 4th day of July, 1884, but no undertaking upon appeal was given. Upon the certificate of the clerk thus filed the appellees moved to dismiss the appeal, as allowed by section.7 of Rule 2. An appeal is not pending in this court in the sense of the statute, (The Code, § 967,) until it is brought up and docketed. As soon, however, as it is taken, as directed by the statute, this court may for good cause upon proper application of the appellant or of the appellee, bring it up by means of the writ of certiorari, or allow the appellee to bring up a transcript of the record, or a certificate of the clerk to the effect that the appeal was taken, docket the same and move to dismiss it.

Citator

UpLaw has not yet analyzed Cross v. . Williams. The absence of a flag is not a finding that it is good law.

Cited by
1 opinion
CROSSv. WILLIAMS,91 N.C. 496(1884)
SCOTT CROSS and others v. JOHN WILLIAMS, Ex'r. and others.
Supreme Court of North Carolina
(October Term, 1884.)
Appeal.

Where an appeal is not prosecuted according to law, the appellee has the right to have a transcript of the record sent up, or a certificate of the clerk that an appeal was taken, and the case docketed and the appeal dismissed. Rule 2, § 7, (89 N.C. 598).
MOTION of defendants to dismiss appeal heard at October Term, 1884, of the SUPREME COURT.
No counsel for plaintiffs.Messrs. Gray Stamps, for defendants.
MERRIMON, J.
After the call of causes from the sixth districtPage 497was concluded at the present term, the appellees in this case filed the certificate of the clerk of the superior court of Davidson county, from which it appears that a judgment was rendered against the appellants at the spring term, 1884, of that court, from which they took an appeal to this court, that the case upon appeal for this court was settled by the presiding judge on the 4th day of July, 1884, but no undertaking upon appeal was given. Upon the certificate of the clerk thus filed the appellees moved to dismiss the appeal, as allowed by section 7 of Rule 2.

An appeal is not pending in this court in the sense of the statute, (THE CODE, § 967,) until it is brought up and docketed. As soon, however, as it is taken, as directed by the statute, this court may for good cause upon proper application of the appellant or of the appellee, bring it up by means of the writ ofcertiorari, or allow the appellee to bring up a transcript of the record, or a certificate of the clerk to the effect that the appeal was taken, docket the same and move to dismiss it. The appellant has no right to take an appeal and bring it up, or abandon it at his will and pleasure; he must bring it up in the established course of procedure. The appellee has a right to have the appeal disposed of according to law, and if the appellant will not prosecute it, the appellee may rid himself of it, and have the benefit of the judgment appealed from.

The provision of THE CODE, § 967, refers to and provides for dismissing appealspendingin this court, that is, to appeals regularly brought up and docketed. But section 7 of Rule 2, refers to and provides for dismissing appeals, in cases where the appellant neglects or refuses to bring up and docket his appeal.

In this case the appellants have failed to bring up their appeal as required by law. Hence, the appellees have the right to move to docket and dismiss it. They have complied with the rule, and the motion must be allowed.

Appeal dismissed.Page 498