Opinion
June Term, 1822.
Where any unexpected accident prevents an appellant from bringing up his appeal, this Court will grant a certiorari; but when the appellant trusts to another to do what he ought to have done himself, and that trust proves to have been improperly placed, he must abide the consequence; a certiorari will not be granted.
APPLICATION for a writ of certiorari, on an affidavit of the defendant, in which he stated that, having appealed from the decision of the court below, to this Court, and having given bond and security to (101) prosecute his appeal, he applied during the term to the clerk below for a transcript of the record of the proceedings in order to convey the same in due time to this Court; that he was informed by the clerk that the transcript should be prepared and handed in due time to the counsel of the affiant, who would carry it up, and the affiant, knowing that his counsel would be at the court in time to file the record. felt perfect security that it was filed until some days after the session of the Court had commenced, when it was too late to file it.
Had any accident happened in this case, over which the defendant reasonably could not have been expected to have any control, which prevented him from bringing up his appeal, it would be the duty of this Court to grant the writ of certiorari as prayed for. But that has not been the case; he trusted to another to do what he ought to have done himself, and as that trust has been improperly placed he must abide the consequence. I think the writ prayed for cannot be granted.
And of this opinion were the other judges. So the writ was refused.
PER CURIAM. Motion denied.
Cited: Collins v. Nall, 14 N.C. 226; Hester v. Hester, 20 N.C. 456.
(105)
IN EQUITY