Orme v. Smyth

1 N.C. 364

• Court: Supreme Court of North Carolina
• Decided: January 15, 1814
• Status: Published

Opinion

Seawell, J.

delivered the opinion of the Court. This is a motion to affirm the judgment of the court of pleas and quarter sessions of Jones County, in a case where the appellant omitted to file the transcript of the record, with the clerk of the Superior Court, fifteen days before the sitting of the term of the ensuing Superior Court.

The act of 1777, §84, declares, that in case the transcript shall not be filed by the appellant at least 15 days before the sitting of the term of the Superior Court, the judgment shall be affirmed with double costs. The act of 1785 increases the penalty with 12 1-2 per cent. interest. By the 86th section of the act of 1777, it is provided that if it shall so happen that there shall not be thirty days between the last day of the term or rehearing in the County Court, and the next term of the Superior Court to which such appeal shall be made, then such appeal shall be continued, and a transcript &c. shall be filed the term succeeding that which shall immediately follow the County Court term. As these acts, therefore, are highly penal in damages, and deprive the appellant of all defence, it is the duty of the Court not to enforce them in any case but such as come expressly within the letter.

Let it then be asked how many days there were between the last day of the term in the County Court and the term of the next Superior Court? It must be answered, only 29. The proviso, then, upon that alternative, gives the appellant till the term next following. It is true the proviso says between the last day of the term or hearing in the County Court, and next term of the Superior Court; but it is not for this Court to with hold from the appellant, upon construction, a privilege which is expressly extended to him by letter, in a case so highly penal as the present: Wherefore, let the motion for judgment be overruled, and the cause placed upon the trial docket.