Sanders v. . Thompson , 114 N.C. 282 ( 1894 )

This cause having been tried below at Spring Term, 1893, the appeal should have been docketed in this Court before the perusal of the district to which it belonged, at Fall Term. It is true that as the appellee did not move to docket and dismiss, the appeal could have been docketed at any time during said Fall Term (113 N.C.). But instead of so docketing the appeal the appellant, on 16 December. 1893, near the end of the term, applied for a certiorari, the (283) motion reciting that the petition was to be heard on 18 December. Ten days notice was not given as required by rule 43, nor was the time shortened by the court. The petitioner's counsel himself fixed the time at two days, and 18 December, 1893, as the day the motion was to be heard, but did not place the notice in an officer's hands for service till 12 January, 1894. Such laches and irregularity do not entitle the petitioner to the benefit of a certiorari, which should be asked for in apt time and upon due notice.

Apart from this the application is resisted on the affidavit of the clerk that the transcript was not sent up because he repeatedly demanded his fees for the same and the appellant failed to pay them. This the clerk was entitled to demand (Andrews v. Whisnant, 83 N.C. 446;Bailey v. Brown, 105 N.C. 127), except in criminal actions (S. v. Nash, 109 N.C. 822). The petitioner's counsel, in reply, does not deny this beyond saying he does not recollect the fees being demanded, but though put on notice by the answer he still does not tender the fees for the transcript. It would be an anomaly if the transcript could be brought up by certiorari without tender or payment of the fees therefor when the appeal could not be brought up direct without such payment or tender. The petitioner furthermore avers that the papers in the cause have been lost or destroyed, but does not aver or shows any steps taken below to supply them. As was said in Peebles v. Braswell,107 N.C. 68, "it would be a vain thing to send a certiorari down for papers which are not in the office and to supply which no steps have been taken." The petitioner has not shown proper diligence nor proceeded in the proper mode to be entitled to a certiorari. The application was made at almost the latest possible moment, ten days notice was not given, nor was any notice served before the day mentioned in the notice, 18 December. The papers asked to be sent up are (284) averred by the petitioner to be nonexistent and no steps are taken to supply them, and the fees for the transcript are not paid or tendered, though the answer to the petition shows that they were demanded by the officer, as he had a right to do.

Petition denied.

Cited: Mortgage Co. v. Long, 116 N.C. 77; Burrell v. Hughes,120 N.C. 279; Norwood v. Pratt, 124 N.C. 747; Blair v. Coakley,136 N.C. 409.