Clements v. Booth , 244 N.C. 474 ( 1956 )

Higgins, J.

The only exceptive assignment relates to the order allowing plaintiff’s motion to docket and dismiss the appeal. The question presented, therefore, is whether the facts found are sufficient to support the judgment. The appeal presents no other question. It is admitted that the rules governing appeals from the recorder’s court are the same as those applicable to appeals from a justice of the peace.

The recorder’s court rendered judgment for the plaintiff. The defendants gave notice of appeal to the Superior Court and paid the recorder’s fee. The recorder sent up only the judgment with the appeal entries noted thereon. The summons, complaint, affidavit, bond, and writ of attachment were not sent to the Superior Court. The defendants, however, paid the Superior Court the necessary fees for perfecting the appeal. Instead of entering the appeal on the trial docket as contemplated by G.S. 1-299 and G.S. 1-300, the Clerk seems to have docketed the judgment in the manner provided for docketing transcripts in the Superior Court as contemplated by G.S. 7-166. For seven terms of court the defendants made no effort to ascertain whether their appeal had been placed upon the trial docket. They did not execute a stay bond. They permitted the plaintiff to issue execution and to satisfy his judgment from a sale of the attached property. They made no inquiry to ascertain what had happened to their case. They permitted it to look after itself. They insisted, however, that having given notice of their appeal and having paid the requisite fees to have it perfected, they were entitled to rely on the officers to discharge their official duties. They cite as authority, Johnson v. Andrews, 132 N.C. 376, 43 S.E. 926. In that case there was no writ of attachment, no sale of attached property. There was inquiry and assurance from the Clerk that the appeal had been docketed for trial. The Johnson case and this case fall in different categories.

Judge McKeithen found facts as set forth in the judgment and held the defendants were guilty of laches and, in his discretion, permitted the appeal to be docketed and dismissed on plaintiff’s motion. The facts found warranted the trial court in holding the defendants guilty of laches. The judgment finds support in many decisions of this Court, among them the following: Electric Co. v. Motor Lines, 229 N.C. 86, 47 S.E. 2d 848; Trust Co. v. Cooke, 204 N.C. 566, 169 S.E. 148; S. v. Fleming, 204 N.C. 40, 167 S.E. 483; Barnes v. Saleeby, 177 N.C. 256, 98 S.E. 708; Helsabeck v. Grubbs, 171 N.C. 337, 88 S.E. 473; Tedder v. Deaton, 167 N.C. 479, 83 S.E. 616; Abell v. Power Co., 159 N.C. 348, 74 S.E. 881; Peltz v. Bailey, 157 N.C. 166, 72 S.E. 978; Southern Pants Co. v. Smith, 125 N.C. 588, 34 S.E. 552.

The facts found are sufficient to support the judgment, and the same is

Affirmed.

Johnson, J., not sitting.