Cooper v. Board of Commissioners of Franklin County

113 S.E. 569, 184 N.C. 615, 1922 N.C. LEXIS 140

Opinion

Pee Cueiam.

"When tbe petition to rehear was filed, tbe justices to whom it was referred submitted it to tbe consideration of tbe Court in conference. McGeorge v. Nicola, 173 N. C., 133. Tbe opinion in tbe instant case was filed on 29 March, 1922, and tbe petition to rehear on 16 September, 1922. Tbe petitioners rely upon tbe provision of 0. S., 1419, as to tbe time within which a petition for rehearing may be filed, this section apparently extending tbe time twenty days after tbe commencement of tbe term succeeding that in which tbe opinion is filed. Tbe rules of practice in tbe Supreme Court expressly require petitions for rehearing to be filed within forty days after tbe filing of tbe opinion in tbe case. 174 N. C., 841, Rule 52. In Lee v. Baird, 146 N. C., 363, Hoke, J., said: “There is no doubt of tbe power of tbe Court to estab- lisb tbe rules in question, and in numbers of decisions we have expressed an opinion both of their necessity and binding force. Thus, in Walker v. Scott, 102 N. C., 490, Merrimon, J., for the Court, said: ‘The impression seems to prevail to some extent that the rules of practice prescribed by this Court are merely directory — that they may be ignored, disregarded, and suspended almost as of course. This is a serious mistake. The Court has ample authority to make them. Const., Art. IV, see. 12; The Code, sec. 691; Rencher v. Anderson, 93 N. C., 105; Barnes v. Easton, 98 N. C., 116. They are deemed essential to the protection of the rights of litigants and the due administration of justice. They have force, and the Court will certainly see that they have effect, and are duly observed whenever they properly apply.’ And in Horton v. Green, 104 N. C., 403, the present Chief Justice, in speaking of one of our rules of practice, said: ‘We have stated this much to show the reasonableness and necessity of the rule, for the power of the Court to make it is as clear as that it is our duty to rigidly adhere to it after it is adopted, and enforce it impartially as to all cases coming under its operation. The late Chief Justice Pearson was accustomed to say of the rules of Court: There is no use of having a scribe unless you cut up to it.’ And the same judge, in Calvert v. Carstarphen, 133 N. C., 27, 28, on this subject, said: ‘The rules of this Court, are mandatory, not directory.’ Walker v. Scott, 102 N. C., 487; Wiseman v. Comrs., 104 N. C., 330; Edwards v. Henderson, 109 N. C., 83. As the Constitution, Art. I, sec. 8, provides that ‘The legislative, executive, and supreme judicial powers of the Government ought to be forever separate and distinct from one another,’ the General Assembly can enact no rules of practice and procedure for this Court, which are prescribed solely by our rules of Court. Herndon v. Ins. Co., 111 N. C., 384; 18 L. R. A., 547; Horton v. Green, 104 N. C., 400; Rencher v. Anderson, 93 N. C., 105.” The attention of the profession is again called to the fact that the requirement of the rule of practice in the Supreme Court is mandatory in this respect, not merely directory, and must be observed. The petition to rehear is dismissed.

Petition dismissed.