" S. v. Farmer, 188 N.C. 243. In Haynes v. Coward, 116 N.C. 840, it is said: "If there is delay in sending up the transcript on appeal in time to be docketed for hearing during the call of the district to which it belongs at the first term of this Court beginning after the trial below as required by Rule 5, and such delay is caused by the neglect of the clerk or judge, all the authorities are to the effect that the appellant, if without laches himself, is entitled to a certiorari to bring up the transcript or the omitted part of it as the case may be. But the writ must be applied for regularly at such term, Rule 41 (now 34), and before the appeal is dismissed." To the same effect is Brown v. House, 119 N.C. 622: "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.
The uniform holding of this Court has been that a certiorari will not be granted in such case unless the appellant has docketed the transcript of the record proper as the foundation of the motion. S. v. Freeman, 114 N.C. 872; Haynes v. Coward, 116 N.C. 840; Brown v. House, 119 N.C. 622; Shober v. Wheeler, ib., 471; Guano Co. v. Hicks, 120 N.C. 29; Burrell v. Hughes, 120 N.C. 277; Norwood v. Pratt, 124 N.C. 745; Worth v. Wilmington, 131 N.C. 532; S. v. Telfair, 139 N.C. 555; Slocumb v. Construction Co., 142 N.C. 350; Pittman v. Kimberly, 92 N.C. 562, and numerous other cases. In Burrell v. Hughes, 120 N.C. 279; the court said: "There are some matters at least which should be deemed settled, and this is one of them. "
The uniform ruling of this Court has been in accord with the above decisions, and may be thus summed up: An appeal must be docketed not later than the termination of the next term of this Court beginning after the trial below (with the exceptions specified in the proviso to Rule 5, 128 N.C. 634). If not docketed at such term by the time required for hearing, at such term the appellee may docket a certificate under Rule 17 then or at any time during the term, if before the appellant dockets the transcript, and have the appeal dismissed. But if the appellee is dilatory and the appellant dockets the transcript at that term, before the appellee moves to dismiss, though too late to secure a hearing, then the appeal will not be dismissed. Packing Co. v. Williams, 122 N.C. 406; Smith v. Montague, 121 N.C. 92; Speller v. Speller, 119 N.C. 356; Haynes v. Coward, 116 N.C. 840; Paine v. Cureton, 114 N.C. 606; Triplett v. Foster, 113 N.C. 389. There have been changes, as will be seen by the above cases, as to the time during such next term by which an appeal must be docketed to secure a hearing at that term. Originally it must have been docketed "during the call of the docket of the district to which the appeal belongs," and of course the first time at which the appellee could have moved then to dismiss for failure to docket was at the end of the call of the district.
Besides, if the appellant had been in no default as to settling the case, it was its duty, during the first two days of the call of causes from the district, to have docketed the record proper and have asked for (504) a writ of certiorari for the case on appeal. Burrell v. Hughes, 120 N.C. 278, in which it is said, "There are some matters which should be deemed settled, and this is one of them." That case cites Pittman v. Kimberley, 92 N.C. 562; Owens v. Phelps, 91 N.C. 253; Porter v. R. R., 106 N.C. 478; Stephens v. Koonce, ib., 255; Pipkin v. Green, 112 N.C. 355; S. v. Freeman, 114 N.C. 872; Paine v. Cureton, ib., 606; Graham v. Edwards, ib., 228; Haynes v. Coward, 116 N.C. 841; Causey v. Snow, ib., 497; Shober v. Wheeler, 119 N.C. 471; Brown v. House, ib., 622; Guano Co. v. Hicks, 120 N.C. 29, and several other cases, showing that the practice is too well settled to be debatable. Motion denied.
ays of the call of the district, instead of allowing, as formerly, the whole week in which to docket appeals — a change which was made that counsel should not be detained here the whole week, lest the opposite party might docket an appeal towards the end of the week, but which does not affect the decision in that case, which is, that if the appellee does not move to dismiss as early as he may, and in the meantime the appellant shall docket his appeal before the motion to dismiss, though after the time allowed for docketing, the appeal will not be dismissed. If the appellee has a right to take advantage of the appellant's want of diligence in docketing his appeal within the first two days of the call of the docket, as required, the appellant can avail himself of the appellee's dilatoriness in not moving to dismiss till after the appellant has cured his negligence by actually docketing the appeal. Triplett v. Foster, supra, has been cited and approved in Paine v. Cureton, 114 N.C. 606; Haynes v. Coward, 116 N.C. 840, and Speller v. (94) Speller, 119 N.C. 356. The appellee also moves to dismiss because the judgment has not been printed.
In any event, since the appeal should (279) have been docketed here at the first term beginning after the trial below, it was the duty of the appellant at such first term to file all of the transcript that was available, and have asked for a certiorari to complete the transcript. His failure to do so is a lack of diligence and forfeits his appeal. Brown v. House, 119 N.C. 622; Haynes v. Coward, 116 N.C. 840; Graham v. Edwards, 114 N.C. 228; Sanders v. Thompson, 114 N.C. 282; S. v. James, 108 N.C. 792; Collins v. Faribault, 92 N.C. 310, and there are still other cases. There are some matters at least which should be deemed settled and this is one of them. Certiorari denied and appeal dismissed.
Motion denied. Cited: Paine v. Cureton, 114 N.C. 607; Haynes v. Coward, 116 N.C. 841; Speller v. Speller, 119 N.C. 358; Rothchild v. McNichol, 121 N.C. 285; Smith v. Montague, ib., 93; Packing Co. v. Williams, 122 N.C. 407; Benedict v. Jones, 131 N.C. 474; McLain v. McDonald, 175 N.C. 419. (391)
Reversed. Cited: Leach v. R. R., 65 N.C. 487; Kingsbury v. R. R., 66 N.C. 284; Hayes v. Coward 116 N.C. 840; Russell v. Ayer 120 N.C. 212; Jones v. Brinson, 238 N.C. 509.