Pipkin v. . Green

17 S.E. 534, 112 N.C. 355

• Court: Supreme Court of North Carolina
• Decided: February 5, 1893
• Status: Published

Opinion

Clark, J.:

This is a motion made at September Term, 1892, to re-instate the appeal which had been dismissed at February Term, 1892 (110 N C., 462), for failure to print, and also for failure to docket at the proper Term. The motion to re-instate, when the dismissal is for failure to print, must be made at the same Term (Rule 30 of the Supreme Court), and will only then be allowed “for good cause shown.” The mo.tion, therefore, comes too late, and must be denied.

The motion, indeed, does not show good cause. Stephens v. Koonce, 106 N. C., 255, is in point. Furthermore, notice of the motion to re-instate was not given as required by Rule 30.

This renders it unnecessary to consider the other ground of dismissal — for failure to docket appeal at the next Term of this Court after the trial below. We will note, however, that if this was caused by the delay of the Judge to settle the case in time, the appellant should have docketed the record proper and have asked for a certiorari ior the “case” at such first Term thereafter. Pitman v. Kimberly, 92 N. C., 562 ; Porter v. Railroad, 106 N. C., 478. Besides, as a motion to re-instate the appeal dismissed on this ground, it is fatally defective for failure to show that the delay to docket the appeal was without laches on the part of the appellant. Simmons v. Andrews, 106 N. C., 201.

Motion Denied.