Opinion
(Filed 25 March, 1931.)
Justices of the Peace E b — Application for writ of recordari held properly refused in this case.
Where the appellant from the judgment of a justice of the peace has given notice of appeal and paid the justice's fee, together with the clerk's fee for docketing the appeal, but no appeal has been docketed in the Superior Court and no fee received by the clerk nor notice of appeal given him, and application for a writ of recordari after the lapse of ten terms of the Superior Court is properly denied. Helsabeck v. Grubbs, 171 N.C. 337, cited and applied; Blacker v. Bullard, 196 N.C. 696, cited and distinguished.
APPEAL by defendant from Small, J., at September Term, 1930, of PITT.
R. T. Martin for plaintiff.
John Hill Paylor for defendant.
Petition for recordari to bring case from court of justice of the peace to Superior Court of Pitt County for trial de novo.
The case was properly before the justice of the peace, who heard it and rendered judgment therein, 31 August, 1929, in the presence of the parties and their counsel. The defendant, through his counsel, in open court, gave notice of appeal, and paid to the justice his fee, together with the clerk's fee for docketing the appeal. No appeal has yet been docketed in the Superior Court of Pitt County, ten regular terms of which intervened between the rendition of the judgment in the justice's court and the filing of application for recordari, 10 September, 1930. The clerk of the Superior Court has received no notice of the appeal, and no fee for docketing same has been paid or tendered to him.
Upon the foregoing findings, which appear in the judgment of the Superior Court, the application for writ of recordari was denied.
Affirmed on authority of Helsabeck v. Grubbs, 171 N.C. 337, 88 S.E. 473, and MacKenzie v. Development Co., 151 N.C. 276, 65 S.E. 1003.
Blacker v. Bullard, 196 N.C. 696, 146 S.E. 807, is distinguishable.
Affirmed.