Opinion
(Filed 13 November, 1907.)
Justice of the Peace — Appeal and Error — Failure of Docket — Motion to Dismiss.
An appeal from the court of a justice of the peace in a civil action should be docketed by the subsequent term of the Superior Court for the trial of criminal cases. When it appears that the justice of the peace was paid for transcript of appeal, made it out the day of the trial and handed it to the clerk of the Superior Court, but the appellant neither tendered nor paid the clerk his fees nor requested that it be docketed, a motion to dismiss will be granted upon failure to docket the appeal.
MOTION to dismiss appeal from a justice of the peace, heard by Moore, J., at March Term, 1907, of STANLY.
From the judgment of the Superior Court dismissing the appeal the plaintiff appealed.
J. R. Price and R. L. Smith for plaintiff.
R. E. Austin for defendant.
The record shows that the defendant secured judgment against plaintiff on a counterclaim before the justice of the peace on 29 April, 1904, and at the time the plaintiff took an appeal to Superior Court and paid the justice's fees. The justice made out the transcript of appeal and handed it to the clerk of said court the same day. The clerk's fee for docketing was not paid or tendered, and he was not requested to docket the appeal, and it was not docketed or filed regularly until 12 September, 1904. A regular term of the court was held 18 July, 1904, and although it was for the trial of criminal cases, the appeal should have been docketed by that term.
The point is expressly decided and the reasons given in Blair v. Coakly, 136 N.C. 407.
Affirmed.
Cited: McClintock v. Ins. Co., 149 N.C. 36; McKenzie v. Development Co., 151 N.C. 277; Love v. Huffines, ib., 380.
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