Mortgage Co. v. Long

Full title: BRITISH AND AMERICAN MORTGAGE COMPANY v. LONG ET AL

Court: Supreme Court of North Carolina

Date published: Feb 1, 1895

20 S.E. 964 (N.C. 1895)

116 N.C. 77

Opinion

(February Term, 1895).

Practice — Appeal — Dismissal — Motion to Reinstate.

1. Where a motion is made to docket and dismiss an appeal, under Rule 17, for failure of the appellant to docket the same, the excuses for such failure should then be made.

2. In the absence of a request from or an agreement with the appellee that an appeal should not be docketed, the fact that negotiations were pending for a compromise is no good excuse for appellant's failure to docket the appeal, and a motion to reinstate will not be allowed.

ACTION heard at May Term, 1894, of HALIFAX Superior Court, before Graves, J.

There was judgment for the plaintiff and defendants appealed, but the appeal having been dismissed under Rule 17, for failure to docket same, a motion to reinstate the appeal was made at September Term, 1894, of this Court and continued to this term.

R. O. Burton for plaintiff.

J. B. Batchelor for defendants.

CLARK, J.

This is a motion to reinstate the case, which was docketed and dismissed by appellee at last term under Rule 17. A motion was made at that time by appellants for a certiorari, but it appearing to the Court, by affidavit of the clerk below, which was not controverted, that the appeal had not been sent up because the clerk had repeatedly demanded his fees for the transcript, which appellants had failed to pay, the certiorari was refused. Bailey v. Brown, 105 N.C. 127; Andrews v. Whisnant, 83 N.C. 446; Sanders v. Thompson, 114 N.C. 282. If in fact the fees had been tendered, or if there was other good excuse, it (78) should have been shown at the time the motion to docket and dismiss was made. Paine v. Cureton, 114 N.C. 606.

The appellants later, at the same term, moved to reinstate (the motion being continued to this term) on the ground that negotiations were pending for a compromise when the appeal was dismissed. But, in the absence of any request from, or agreement by, appellee that the appeal should not be docketed, this was no excuse for a failure to docket in proper time. The negotiations could have gone on as well after docketing the appeal as before. In fact, however, the correspondence between the parties shows that the offer to compromise had been made and rejected before the call at last term of the district to which the appeal belonged.

Motion denied.

Cited: Vivian v. Mitchell, 144 N.C. 475; Hawkins v. Tel. Co., 166 N.C. 214; Transportation Co. v. Lumber Co., 168 N.C. 61.

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