Opinion
(September Term, 1896.)
Appeal — Record — Certioari [Certiorari].
1. A petitioner for a certiorari must show himself free from laches by doing all in his power towards having the appeal perfected and docketed in time.
2. The fact that the clerk below charged exorbitant fees for making the transcript of "the case on appeal," signed by the judge, is no excuse for appellant's failure to send up the record. If the fees were exorbitant, the appellant's remedy was to pay the fees, send up the transcript, and move to have the clerk's charges retaxed.
PETITION for certiorari.
The appellee makes the objection to the petition for certiorari that the appellant has not filed a transcript of the record proper (or shown why he could not do so) as a basis for the motion for a certiorari for the "case on appeal." The objection is fatal. Pittman v. Kimberly, 92 N.C. 562; Owens v. Phelps, 91 N.C. 253; S. v. Freeman, 114 N.C. 872; Shober v. Wheeler, ante, 471. The petitioner for certiorari must show himself free from laches by doing all in his power towards having the appeal perfected and docketed in time.
It also appears that the case on appeal has been settled by the judge and is in the clerk's office below, and it is averred by the appellee, and not denied by the appellant, that the judge has endorsed thereon that it was settled "upon disagreement of counsel"; but if appellant's contention is correct, that no exception was filed and that he did not consent to settlement of the case by the judge, his condition is no better, for neither his own statement of the case nor the record proper has been sent up, and no excuse is shown. The appellant pleads as his excuse why the "case on appeal," signed by the judge, has not been sent up, that the clerk charged exorbitant fees for making out the transcript of the same for this Court. If so, the appellant's remedy was to pay the fees, and (623) send up the transcript, and move to have the clerk's charges retaxed. It is the duty of the appellant to pay the costs of the transcript even in a pauper appeal. Bailey v. Brown, 105 N.C. 127; Speller v. Speller, ante, 356.
CERTIORARI DENIED.
Cited: Guano Co. v. Hicks, 120 N.C. 30; Burrell v. Hughes, ib., 279; Parker v. R. R., 121 N.C. 504; Critz v. Sparger, ib., 283; Rothschild v. McNichol, ib., 284; Norwood v. Pratt, 124 N.C. 747; Stroud v. Tel. Co., 133 N.C. 254; Comrs. v. Chapman, 151 N.C. 328; Walsh v. Burleson, 154 N.C. 175.