Opinion
(September Term, 1897.)
Practice — Appeal — Certiorari — Verification of Petition — Transcript of Record — Docketing Appeal.
1. When the petition for a certiorari as a substitute for an appeal has not been verified, as required by Rule 42, and no transcript of the record has been filed and no excuse shown for the failure to file it, the motion will be denied.
2. Though, in such case, the motion for a certiorari is denied, the appellant may docket the appeal at the term of this Court to which it was taken before a motion is lodged for its dismissal, or if the case was tried below since the commencement of the term to which the appeal was taken, the appellant may docket the appeal regularly at the next term.
MOTION of appellant for writ of certiorari.
Watson, Buxton Watson for defendant.
No counsel contra.
The motion for the writ of certiorari must be denied. The petition is not verified, as required by Rule 42, nor is the transcript of the record proper filed, nor good reason given for failure to do so. Burrell v. Hughes, 120 N.C. 277, and cases cited; Brown v. (285) House, 119 N.C. 622; Parker v. R. R., post, 501. Indeed, no excuse is shown why the transcript of the whole record, including the case on appeal, is not filed. The motion for certiorari must be denied; yet, as no motion to dismiss has been made, it can still be docketed at any time this term, if before such motion is made. Smith v. Montague, ante, 92; Triplett v. Foster, 113 N.C. 389. Indeed, if the cause was tried below since this term began, it can be docketed regularly at next term.
Motion denied.
Cited: Critz v. Sparger, ante, 283; Norwood v. Pratt, 124 N.C. 747.