McPherson Drug Co. v. Norfolk Southern Railway Co.

91 S.E. 606, 173 N.C. 87, 1917 N.C. LEXIS 246

• Court: Supreme Court of North Carolina
• Decided: March 7, 1917
• Status: Published

Opinion

BRO.WN, J.

Judgment was rendered against defendant in the recorder’s court 5 December, 1914, and an appeal ivas taken and duly docketed in the Superior Court before next ensuing term, 5 February, 1915. The case has stood for trial on the civil-issue docket at every term of the Superior Court until November Term, 1916, when the motion to dismiss was first made.

It appears in the case on appeal that it has appeared regularly on the calendar of cases set for trial with the knowledge and consent of plaintiff’s attorneys.

His Honor dismissed the appeal because the statute establishing the recorder’s court failed to provide for an appeal and that defendant should have applied for a certiorari at first succeeding term of the Superior Court. It is true the statute does not provide for an appeal and that certiorari is the only remedy.

This case differs, however, from Taylor v. Johnson, 171 N. C., 84. In that case the appeal-was not docketed in Superior Court and no certiorari was applied for at next term of that court.

In this case the appeal was docketed at the next succeeding term in February, 1915, and the case was duly calendared by consent at every trial term since, and no motion to dismiss was made until November Term, 1916.

In the case cited it is held that when the appeal is taken and duly docketed in the Superior Court, without objection, the jurisdiction of that court will attach notwithstanding the failure of the statute to provide for an appeal.

In this case the appeal was docketed at February Term, 1915, and duly calendared by consent at each succeeding term, and no motion to dismiss was made until November Term, 3916; consequently the plaintiff has lost his right to dismiss by delay and long acquiescence.

The motion was made too late, and should have been denied.

Eeversed.