This is a petition for certiorari. It was filed at the first term of this Court after the trial below. The ground of the application is that the case on appeal was not settled by the judge without any default on the part of the appellant. The petitioner, however, failed to docket at such term the transcript of the record proper. In Pittman v.Kimberly, 92 N.C. 562, it is held by Smith, C. J., that if for any reason the judge fails to settle the case on appeal on disagreement of counsel, the appellant must in proper time docket the transcript of the record proper, and then move for a certiorari to bring up the "case on appeal," and that it is the duty of the appellant, not of the clerk, to have the record sent up. In that case the appeal was dismissed, even though, unlike the present case, the transcript of the record (873) proper had been filed at the next term before the motion to dismiss was made. In this case no record proper has yet been filed, and there is nothing to show that the case was properly constituted in the court below. There is nothing before us save the petition.
Pittman v. Kimberly, supra, is exactly in point, and has often been cited and approved. Stephens v. Koonce, 106 N.C. 255, 256; Porter v. R.R., 106 N.C. 478; S. v. Preston, 104 N.C. 733; Bailey v. Brown,105 N.C. 127; Pipkin v. Green, 112 N.C. 355. Motion denied and appeal.
Dismissed.
Cited: Paine v. Cureton, ante, 607; Causey v. Snow, 116 N.C. 498;Shober v. Wheeler, 119 N.C. 472; Brown v. House, ib., 623; Burrell v.Hughes, 120 N.C. 278; Guano Co. v. Hicks, ib., 30; Parker v. R. R.,121 N.C. 504; Walsh v. Burleson, 154 N.C. 175.