Opinion
(Filed 4 April, 1923.)
Appeal and Error — Certiorari — Laches.
It appearing on this motion for a certiorari by the appellants to bring up the case tried in the Superior Court for review in the Supreme Court, that the record proper had been properly filed, and the failure of the record to have been docketed in time was for reasons beyond the appellant's control, and that he was not guilty of laches, but that he has a case appearing to be meritorious: Held, the writ prayed for is granted, though the Court does not commend the irregular manner in which the petition was prepared and the informal manner of stating the facts.
Wright Stevens for plaintiff.
J. Felton Head for defendants. (265)
This is an application by the defendants for a certiorari to bring up the case on appeal to be hereafter settled by the presiding judge. The petitioners have filed the record proper and based their claim to the writ upon it and the fact that the judge has been unable to settle the case on appeal, by reason of obstacles beyond the control of the defendants, and the consequent inability to obtain a copy of the translated notes of the court stenographer, and for these and other valid reasons the controverted matters relating to the case could not be settled and determined by the judge. It appears from the very meager statement of the facts that the defendants have not been in default and have complied with the statute and rule of this Court in docketing the record here and doing all within their power to accomplish an early hearing of the case. For these reasons this Court has granted the prayer of the petitioners, but does not commend the irregular manner of preparing the same, and the rather indefinite and informal manner of stating the facts. Sufficient appears, though, to indicate that the case should be reviewed, as the defendants have not been negligent or dilatory, but reasonably diligent. It is, therefore, ordered that a writ of certiorari be issued from this Court by the clerk, in accordance with the petition, and when the return comes in, the case may be set for hearing on some future day in this term, if the parties so desire, or continued.
Petition allowed. (266)