Clemmons v. . Archbell , 107 N.C. 653 ( 1890 )

The facts sufficiently appear in the opinion. This case is before us upon the return to a writ of certiorari directed to the clerk of the Superior Court of Buncombe County, commanding him to send up the record in the case, and the judge below "to send up a statement of the case on appeal." It appears from the record that, at December Term, 1889, of Buncombe, a judgment was rendered against the defendant, from which he appealed to this Court. The case on appeal was properly served within the time (654) required by law, and amendments thereto were filed by the appellee, and the judge was required to fix a time and place for settling the case on appeal. His Honor, Judge Whitaker, who tried the case, says, in substance, that after he had left the Twelfth District and entered upon the duties of the First District the case tendered by the appellant, with the exceptions of the appellee, were sent by express to his address in Raleigh, and not received by him until his return in June, 1890, from holding his courts in the First District; that he had been engaged in the trial of a great many actions, and that the testimony of the trial in this case had so passed from his memory as to make it impossible for him, without the aid of his notes taken at the trial, to settle the case on appeal for the Supreme Court. The notes and memoranda made during the progress of the trial, showing the exceptions made by the parties, with his charge to the jury, were filed, at the termination of the court, with the clerk. He had applied to counsel for appellant and appellee, and the clerk of the court, and after diligent search the notes of the testimony in the case cannot be found. The clerk says he thinks the notes were never filed, and certainly are not now in the office.

It appears from the return to the writ of certiorari that it is impossible to get the case on appeal settled, and the appellant has lost his appeal through no fault or negligence of his. He has been guilty of nolaches, and it has been frequently held that when an appellant has lost the benefit of his appeal without any negligence or default of his own, a new trial will be awarded. Comrs. v. Steamship Co., 98 N.C. 163, and cases there cited. The appellant is entitled to a

New trial.

Cited: S. v. Parks, post, 821; Ritter v. Grimm, 114 N.C. 374; McGowanv. Harris, 120 N.C. 140; S. v. Huggins, 126 N.C. 1056.

(655)