Hinnant v. American Fire & Marine Insurance

168 S.E. 199, 204 N.C. 306, 1933 N.C. LEXIS 389

Opinion

Stacy, C. J.

Filing transcript of record proper as basis for certiorari is required to acquaint the Court with knowledge of the pendency of the action, that notice of appeal was duly given, and that the same has not been abandoned. Pittman v. Kimberly, 92 N. C., 562; S. v. Freeman, 114 N. C., 872, 19 S. E., 630; Baker v. Hare, 192 N. C., 788, 136 S. E., 113; Brock v. Ellis, 193 N. C., 540, 137 S. E., 585. Entries of appeal need not appear in habeas corpus proceedings. In re Croom, 175 N. C., 455, 95 S. E., 903.

The certiorari was improvidently granted. Rule 34. Notice is required as well as filing transcript of record proper. It appears that plaintiff had abandoned his appeal and was apparently relying upon a subsequent order of the judge, until the present motion to docket and dismiss the appeal was filed in this Court.

Tbe transcript of record filed by movant on its appeal will not enure to tbe benefit of respondent, because tbe two appeals are not from tbe same judgment. Tbe respondent gave notice of appeal from tbe judgment of nonsuit. Tbe movant appealed from tbe order entered sixty days thereafter.

Tbe motion to docket and dismiss plaintiff’s appeal is well founded. Respondent’s rights, if any be now have, may arise in subsequent proceedings.

Motion allowed.