Turner v. . Powell , 93 N.C. 341 ( 1885 )

It is plain that the petitioners fail to show any sufficient legal excuse for their failure to perfect their appeal as required by the statute in such cases. It has been decided repeatedly that "mere ignorance of the legal requirements in executing or filing the undertaking upon appeal will not excuse and entitle him (the appellant) to the writ of certiorari as a substitute for the lost appeal." The appellant is always "presumed to know the law, and must inform himself in respect to what is required of him." "He must be diligent and careful in complying with its requirements"; "it will not excuse or help the slothful, the careless and negligent litigant; he sleeps upon his rights, forgets and neglects his duties at his peril."Winborne v. Byrd, 92 N.C. 7; Suiter v. Brittle, ibid., 53.

But the counsel for the petitioners earnestly insisted on the argument that they acted upon the advice of counsel and were advised or misled by him. We do not concede that such excuse, if it existed, would be sufficient. The ignorance or carelessness of counsel, certainly outside of the scope of his duty in the course of his action, could not be allowed to prejudice the opposing party. It is the misfortune or neglect of a party to employ counsel unskilled in the law, clearly so in respect (343) to matters about which there can be no doubt. It is not the province of the court to aid one party to the prejudice of another simply because his counsel gave him bad advice.

If, however, this were so, it is not alleged in the petition nor does it appear, by affidavit or otherwise, that the intelligent counsel named in the petition advised the petitioners that the affidavit made by the sureties to the undertaking was sufficient. The strong probability is he did not. It is presumed that he knew the law and advised his client correctly, if at all. Besides no affidavit of himself or any one else is offered to prove that he did. The undertaking now on file appears to be in one handwriting, probably that of the counsel, while the affidavit of the sureties appended to it in a different one, purporting to be that of the justice of the peace.

From what appears it seems that the counsel may have advised that it would be sufficient to make the affidavit before a notary public or a justice of the peace. If so, this was correct; but this did not imply that such affidavit as was made was sufficient.

This is the ordinary case of negligent mistake in such cases, such as we have no authority to correct or aid. The appellees in the appeal, who are the respondents here, insist upon their rights, and these are such under the statute, very explicit and mandatory in its terms, as we must observe and administer. The petition must be dismissed.

Petition dismissed.

Cited: Griffin v. Nelson, 106 N.C. 238.

(344)