Opinion
September Term, 1890.
Reinstatement of Appeal — Printed Record — Rules — Affidavits — Misunderstanding — Instructions of Counsel.
Where it sufficiently appears by affidavits that the appellant caused to be printed in due time the copies of the record required by rule of this Court, and that, misunderstanding the instructions of his counsel and the clerk of the Superior Court, to whom he applied for information, he sent only one printed copy to this Court and mailed others to counsel on both sides: Held, that, upon due notice and motion, the cause is reinstated.
MOTION to reinstate an appeal, heard in the Supreme Court at September Term, 1890.
W. C. Munroe, C. B. Aycock and W. T. Faircloth for plaintiffs.
C. M. Busbee for defendants.
The appellant files affidavits of himself and others that he caused, in due time, the necessary number of copies of the record to be printed, as required by Rule 28 of this Court; that he applied (581) to his counsel and to the clerk of the Superior Court for information as to what disposition to make of them; that, misunderstanding the instruction received, and in good faith, he sent only one printed copy to this Court, and mailed others to the respective counsel on both sides, and he files, with the motion, the requisite number of the printed record. Due notice of the motion to reinstate was given under Rule 30.
These affidavits are not controverted, and there is no suggestion that this was done to procure delay, or that appellant acted otherwise than in entire good faith. The appeal must be reinstated. Whitehurst v. Pettipher, 105 N.C. 39.
This case differs from Griffin v. Nelson, 106 N.C. 235, in that here the appellant applied to counsel to learn what was necessary to be done in regard to sending up the transcript and perfecting his appeal for hearing in this Court, and only failed to do so from misapprehending the instructions given him.
Motion allowed.