Orme v. . Smythe

Supreme Court of North Carolina

Orme v. . Smythe

4 N.C. 32

DecidedJanuary 5, 1814

StatusPublished

This text of 4 N.C. 32 (Orme v. . Smythe) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Orme v. . Smythe, 4 N.C. 32 (N.C. 1814).

Pincite

Opinion

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, sec. 84, declares that in case the transcript shall not be filed by the appellant at least fifteen 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 section 86 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 of 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, etc., 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 defense, 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 were between the last day (33) of the term in the county court and the term of the next Superior Court. It must be answered, only twenty-nine. 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 orhearing in the county court and the next term of the Superior Court; but it is not for this Court to withhold 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.

NOTE. — The law as to filing the transcript in appeals from the county to the Superior Court is now altered. (See 1 Rev. Stat., ch. 4, secs. 3, 4, 5, 6). *Page 28

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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, sec. 84, declares that in case the transcript shall not be filed by the appellant at least fifteen 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 section 86 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 of 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, etc., 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 defense, 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 were between the last day (33) of the term in the county court and the term of the next Superior Court. It must be answered, only twenty-nine. 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 orhearing in the county court and the next term of the Superior Court; but it is not for this Court to withhold 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.

NOTE. — The law as to filing the transcript in appeals from the county to the Superior Court is now altered. (See 1 Rev. Stat., ch. 4, secs. 3, 4, 5, 6). *Page 28

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Bluebook (online)

4 N.C. 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orme-v-smythe-nc-1814.