The appellee moves to dismiss the appeal on the grounds:
1. That the record has not been printed, as required by Rule 28.
2. That the appeal was not docketed at the Fall Term, 1890, of this Court, as required by Rule 5, the judgment therein having been rendered prior to the beginning of said term.
3. That the appellant has filed no appeal bond.
The appellant makes no defense as to the first ground assigned. As to the second, he files an affidavit of his counsel that, though the judgment was rendered and the case on appeal was settled by the judge prior to the beginning of the Fall Term of this Court, he omitted, in the press of business, to notify his client (the appellant) till after the docket of the district had been called, and when it was too late to have the cause argued at that term. The appeal was docketed here 23 January, 1891. If this excuse were entitled to any consideration it is sufficient to say that, although the hearing of that district had passed, as the appellee had not docketed and dismissed the appeal as entitled (413) to do (Rule 17), it was still the privilege and the duty of the appellant to docket his appeal during the Fall Term of this Court. Porterv. R. R., 106 N.C. 478.
As to the third ground of the motion, the appellant has not offered to file a bond, or make a deposit in lieu thereof, which the court is authorized in its discretion, to permit to be done. Acts 1889, ch. 135.
On either one of the grounds assigned in his motion, the appellee is entitled to have the
Appeal dismissed.
NOTE. — Joyner v. Hines and Whitehead v. Blandiford, from Pitt, and Rodman v. Archbell, from Beaufort, were dismissed at this term upon same ground.
Cited: Pippin v. Green, 110 N.C. 462; Causey v. Snow, 116 N.C. 498;S. v. Deyton, 119 N.C. 882; S. v. Telfair, 139 N.C. 556; Mirror Co. v.Casualty Co., 157 N.C. 30; Howard v. Speight, 180 N.C. 654.