This is an application for a writ of certiorari to supply certain omissions alleged to have occurred in the case on appeal. The plaintiff applied for a writ at the last term of this court, but the writ was denied without prejudice, the Court allowing the plaintiff to (358) renew his motion after he had applied to the particulars set out in his petition for the writ, or some of them. Plaintiff made his motion to the judge, who, in the presence of the counsel of the parties, heard the matter and, by consent, took the papers to his home for the purpose of preparing his statement, which was filed by him on 2 July, 1912. In his written response to the application of the plaintiff for an amendment to the case on appeal, the judge makes the following statement of facts, and expressed his willingness that it be inserted in the case, to wit:
"Upon the first issue the court charged the jury as follows: `That the defendant admits that he executed the paper introduced in evidence, but says that it did not contain the contract as agreed upon between the plaintiff and the defendant, in that by inadvertence and oversight of the draftsman a material part of the contract was omitted therefrom, to the effect that he was not to convey the land if he did not get it by compromise or judgment at the Spring Term of court which convened on 26 April, 1909; if the defendant has satisfied the jury, that the contract is as alleged by the defendant in his answer, they will answer the first issue No; that if the defendant has not so satisfied the jury, they will answer the first issue Yes.' To this instruction the plaintiff excepted. The court charged the jury fully as to the burden of proof and as to the weight of the evidence by which the defendant must establish his contention, and to this portion of the charge there was no exception. *Page 292 These are the only changes that, after a careful examination of the matter, I think ought to be made, but I believe in justice to your client I ought to make these."
Plaintiff did not renew his motion for a certiorari until after the argument of the case in this Court at the present term, which was 29 October, 1912, and in fact, as we know, not until after the Court had fully considered the case, made its decision, and the opinion had been prepared to be handed down. Proceedings in this Court were therefore arrested in order that the Court might take the present application (359) of the plaintiff into conference and pass upon it. It is alleged in the petition for the writ that counsel of the plaintiff were otherwise engaged and could not give that attention to the matter which it required, and that they forgot the time at which the case would be argued or the district would be called in regular order, and this is alleged as a sufficient excuse for not presenting the application sooner. It is well understood that petitions of this kind must be presented to the Court with reasonable and proper diligence. There must be no laches justly attributable to the party who makes the applications, and, if there be any on his part, the consequences are visited upon him, and not upon the other party, who is innocent and diligent. We believe that in a almost every stage of judicial proceedings the maxim is of universal application that the law aids those who are vigilant, and not those who sleep upon their rights, and this rule specially applies to proceedings of this sort. 4 Enc. Pl. Pr., 136; 6 Cyc., 778 and 779, and notes. The practice has been established in this Court for many years that the writ of recordari or of certiorari, as a substitute for appeal, should be applied for without any unreasonable delay, and that any such delay, after the earliest moment in the party's power to make the application, must be satisfactorily accounted for. We do not think the plaintiff in this case has reasonably accounted for his remissness in making the application. Boing v. R.R., 88 N.C. 62; Norman v, Snow, 94 N.C. 431. Rule 41 of this Court requires that application for writ ofcertiorari shall be made at the term to which appeal ought to have been taken. We may safely say that the plaintiff should have applied for the writ a sufficient time before the call of the docket for the Tenth District to unable the Court to consider his application, and, if granted, to issue the writ and have the case amended so that it could be heard when it was called in regular order. We have never entertained an application for the writ after the argument has commenced, and surely not after the case has been submitted, taken into conference and decided by the court, and certainly not except under extraordinary circumstances. Parties must take notice of the time when their cases will be *Page 293 called in this Court, and we cannot hear them say that they were (360) either ignorant of the time or that, knowing the time allotted to the district from which the case comes to this Court, they had inadvertently neglected to be present and look after their interests. The writ is therefore denied.
We have, notwithstanding the denial of the writ, examined and considered the proposed amendment to the case, as indicated by the judge's statement, and find that if it had been inserted originally in the case on appeal it would not have changed our judgment. Plaintiff states in his application to the judge that the latter charged the jury that if they should find the land was sold to Dobbins in good faith to settle a long existing lawsuit, the defendant would not be liable for damages. This instruction, no doubt, was given in answer to the plaintiff's request that the case should be made to turn upon the good faith of the transaction between the defendant and Dobbins, and that the jury would give no effect to the agreement as stated by defendant in his answer, unless the compromise and settlement between defendant and Dobbins had been fairly conducted, in good faith, and without any intent to defeat the plaintiff's rights. This was really the pivotal question in the case, and the jury found against the plaintiff in regard to it, and it seems to us the controversy was thereby settled in favor of the defendant, and we do not see any ground, in this view of the case, upon which plaintiff could expect a recovery. The charge of the court, that the jury should answer the first issue "No", if they should find that defendant was not to convey the land to the plaintiff, unless he got it under the compromise with Dobbins, was plainly correct. Plaintiff alleged an absolute and unconditional promise to convey him the land at $4,500, and defendant alleged another and quite different contract, which was subject to the condition that, in the settlement and compromise with Dobbins, he should acquire the land. If they found this to be the case, they could not, of course, have said, in response to the first issue, that defendant had made the contract set forth therein, and, having found that the defendant had correctly stated the contract in his answer, and that the compromise was made in good faith, the judgment was properly given to the defendant, as the finding was necessarily fatal to the plaintiff's recovery. The issue between the parties was substantially (361) one of fact, which has been finally settle by the jury.
Certiorari denied.
Cited: Wheeler v. Cole, 164 N.C. 378. *Page 294