Critz v. . Sparger , 121 N.C. 283 ( 1897 )

The petition is not verified, as demanded by Rule 42, and there is no transcript of the record proper, nor reason given for its absence, and nothing to negative laches in not having that, and the case on appeal also, docketed. Burrell v. Hughes, 120 N.C. 277, and cases cited; Brown v.House, 119 N.C. 622; Parker v. R. R., post, 501, and Rothchild v.McNichol, post, 284. It is true, it is alleged that the case on appeal was filed in the clerk's office and that the clerk has failed to send up the transcript, but there is no allegation that the appellant has tendered the fees and is otherwise free from laches. Brown v. House, supra, and cases cited.

It may be that this case was tried below since the present term of this Court began; if so, the appellant was not required to docket his (284) appeal at this term (Rule 5), though it would stand for trial at this term if it reached here in time (Avery v. Pritchard,106 N.C. 344), and the appellant is in nowise prejudiced by the refusal of his motion for the writ of certiorari, but may docket his appeal, if such is the case, at the next term of this Court.

Motion denied.

Cited: McMillan v. McMillan, 122 N.C. 410; Norwood v. Pratt,124 N.C. 747.