Stroud v. Western Union Telegraph Co.

45 S.E. 592, 133 N.C. 253, 1903 N.C. LEXIS 51

Opinion

Claeic, O. J.

This cause was tried at June Term, 1903, of Guilford Superior Court, and by consent of the parties thirty days were allowed to serve statement of “case on appeal,” and thirty days thereafter to serve counter case. The counter case was served 15th August, being within the time specified. It was thereupon the duty of the appellant, unless he accepted the counter case, to “immediately request the Judge to fix a time and place for settling the case before him.” The Code, see. 550; Simmons v. Andrews, 106 N. C., 201. Tbe appellant did not accept tbe counter case, and instead of “immediately” taking steps to bring tbe matter before tbe Judge that be might settle tbe case, tbe appellant took no action whatever to that end till 14th October, and shows no legal excuse for bis laches. Tbe Judge promptly settled the case on 17 th October and sent it by express to tbe appellant, but it was not docketed here on tbe morning of 20th October, as required for that district, and the appellant on the opening of Court on that day moved for a certiorari.

Tbe laches in failing to send tbe papers to tbe Judge immediately upon receipt of the counter case, and delaying to do so for two months, not being accounted for to our satisfaction, tbe motion for certiorari must be denied. Peebles v. Braswell, 107 N. C., 68; Brown v. House, 119 N. C., 622, and the counter motion to dismiss for failure to print tbe record and briefs within the time prescribed by Rule 34, 131 N. C., 831, and Rule 30, 128 N. C., 642, must be allowed.

Appeal dismissed.