Norwood v. . Pratt

Montgomery, J.

At November Term, 1898, of Orange Superior Court this case was heard upon exceptions filed to a referee’s report. All of the exceptions made by the defendants were overruled and the report of the referee was confirmed. Tire defendants excepted, seriatim, to tlie overruling of each exception. By agreement between the counsel of both sides the judgment was signed out of term, and it was filed in the office of the Clerk on the 29th of November, 1898, and notice thereof promptly given to the counsel of the defendants.

Ordinarily at the first term of this Court after the trial below it is the duty of the appellant to have filed here the transcript on appeal. Rule 5, 121 N. C., 694. If at that time the case on appeal has not been settled by the Judge and the appellant has not been guilty of any laches, he would be entitled to a writ of certiorari therefor, upon his filing “all of the transcript that was available.”

The district from which this case comes was reached on the 7th day of March, 1899, and at that time the appellants had filed here only a copy of the judgment and the docket entries in the case. The Judge had not settled the case on appeal. The certificate attached showed the matter to be a “partial transcript of the record, sent at the request of the defendant’s counsel.” The appellants did not attempt to account for the balance of the record proper (although it appears that it had been for weeks in the Clerk’s office), and made a motion for certiorari to procure the case on appeal.

In Burrell v. Hughes, 120 N. C., 277, it was said: “In any event since the appeal should be docketed here at the first term beginning after the trial below, it was the duty of the appellant at such first term to file all of the transcript that was available, and have asked for a certiorari to complete the transcript. His failure to do so is a lack of diligence and forfeits his appeal.”

The allegation of the appellants is that the rest of the transcript was not furnished because the Clerk would not mate it out, notwithstanding the fact that their counsel tendered to him the fees necessary for that purpose. The Clerk’s affidavit was to the contrary. We need not, however, pass upon that contradiction. The appellants were not before this Court according to its rules, and, before they could get a standing here, it was incumbent on them to show, to our satisfaction, that they had not been guilty of laches. We can not say that that has been shown, affirmatively, and we must therefore deny the motion for a certiorari, and dismiss the appeal.