
    E. PELTZ and L. RICHARDSON v. J. MILTON BAILEY.
    (Filed 27 November, 1911.)
    1. Courts, Justices’ — Appeal—Time of Docketing — Procedure.
    An appeal from tbe court of a justice of tbe peace should be docketed at tbe next ensuing term of tbe Superior Court if tbe judgment appealed from bas been rendered more than ten days before that term, without tbe discretion of tbe trial judge to grant indulgence or extension of time. Revisal, sec. 608.
    2. Same — Recordari—Laches—Attorney and Client.
    When an appeal from a justice’s court bas not been docketed within tbe time prescribed by tbe statute (Revisal, sec. 608), tbe appellant should move for a recorOari, at the first ensuing term of the Superior Court, that the appeal should be docketed; and though appeal had been prayed in open court and the fee of the justice paid, the failure to move for a recordari and to make proper inquiry of tbe clerk of tbe Superior Court as to whether the case has been docketed is such laches as will, in tbe absence of agreement of tbe parties, entitle the appellee to have the case dismissed upon his motion; and the fact that appellant has employed an attorney to look after thé appeal will not excuse him.
    Brown, J., dissenting.
    Appeal from hong, J., at April Term, 1911, of Mitchell.
    ’ Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Ciarle.
    
    
      
      Charles E. Greene for plaintiffs.
    
    
      W. L. Lambert, Qouncill & Yount, and Black & Ragland for defendant.
    
   Clare, C. J.

This is an appeal from an order dismissing an appeal from a justice of tbe peace. Tbe judge finds tbe facts as follows:

The judgment was rendered by a justice of the peace 22 July, 1910. the defendant appealed and gave notice thereof in open court. The justice was doubtful wbether bis fee of 30 cents bad been paid, but upon conflicting evidence the court found tbat it bad been. the next term of the Superior Court began 25 July and the next regular term was beld in November. The appeal was not sent up till 27 March, 1911. At November term the defendant attended court, but was informed by bis attorneys tbat the cause could not be tried at tbat term and returned borne. Neither the defendant nor bis counsel asked the clerk, nor examined the docket at tbat term to see, wbether the cause was docketed or not. Nor was any recordari asked for nor was there any offer at tbat term to docket the case.

The appellee has rights as well as the appellant. the failure to -docket the appeal in this case at the November term was negligence on the part of the appellant which entitled the ap-pellee to have the appeal dismissed. This point has been so often beld by this Court tbat it admits of a mild surprise tbat it can again be presented. In Pants Co. v. Smith, 125 N. C., 588, the Court beld tbat an appeal from a justice of the peace should be dismissed, on motion of the appellee, “when not docketed for trial at the next succeeding term of the Superior Court, if it began more than ten days after judgment rendered.” the Court further said tbat this provision of the statute was “reasonable in order to prevent further delay and put an end to litigation in a reasonable time,” citing S. v. Johnson, 109 N. C., 852; Ballard v. Gay, 108 N. C., 544; Davenport v. Grissom, 113 N. C., 38.

In Davenport v. Grissom, supra, the Court beld that an appeal from the judgment of a justice of the peace rendered more than ten days before the next ensuing term of the Superior Court should be docketed at that term, and that an attempted docket-mg at a subsequent term is a nullity; benee, that sucb appeal was not in the Superior Court and the plaintiff could not take a nonsuit. • In that case the Court beld that the judge properly beld that be “bad no discretion to permit the appeal to be docketed at a subsequent term to the one to wbicb it should bare been returned. The appellant bad bis remedy (if in no default) by an application for a recordari at the first ensuing term of the Superior Court after appeal taken. Boing v. R. R., 88 N. C., 62.” This case bas been cited since witb approval. Pants Co. v. Smith, supra; Johnson v. Andrews, 132 N. C., 380; Johnson v. Reformers, 135 N. C., 386; Blair v. Coakley, 136 N. C., 407; MacKenzie v. Development Co., 151 N. C., 278.

In Johnson v. Andrews, supra, the appellant was beld excused because the return to the appeal was delivered to the clerk and 50 cents was paid him by the appellant to docket the appeal; and there being no civil docket made up at tbat term, the appellant asked the clerk if the appeal bad been docketed, and was told by him tbat it bad been; benee the appellant was in no default and was entitled to have bis case tried. In the present case the appellant did not pay the clerk for docketing the appeal and made no inquiry as to whether it bad been sent up or whether it bad been docketed, and neither be nor bis counsel paid any attention to the matter. The appellee bad the right under the statute and the repeated decisions of the Court to consider the litigation terminated.

Revisal, 608, requires an appeal from the justice of the peace to be docketed at the next ensuing term of said court, wbicb the Court bas beld means the next ensuing term “wbicb begins more than ten days after the judgment in the magistrate’s court”; and the statute provides further tbat the case shall be triable at sucb first term of the Superior Court at wbicb the appeal is required to be docketed. The courts have no more right to dispense witb sucb requirement as to docketing an appeal in the Superior Court than to disregard the similar provision as to' docketing an appeal in tbis Court. To further expedite the trial of appeals from justices, Revisal, 609, provides tbat sucb causes shall be tried upon the original papers.

The only cases in which, an appeal can be docketed either in the Superior Court or in this Court, after the next ensuing term, is when there has been no laches on the part of the appellant or when there is the consent of parties. Jerman v. Gulledge, 129 N. C., 242.

In MacKenzie v. Development Co., 151 N. C., 277, this Court reviewed the decisions and reaffirmed the ruling that “an appeal from a justice of the peace must be docketed at the next ■ensuing term of the Superior Court commencing more than ten days after the notice of the appeal. An attempted docketing at a later term is a nullity.” Revisal, 307, 308. And further reiterated what was said in Pepper v. Clegg, 132 N. C., 316, “That the employment of counsel does not excuse the client from giving proper attention to the case. McLean v. McLean, 84 N. C., 366; Vick v. Baker, 122 N. C., 98; Norton v. McLaurin, 125 N. C., 185”; to which was added: “When a man has a case in court, the best thing he can do is to attend to it.”

The courts have sufficient employment to decide the cases which are presented to them on the merits, without taking up valuable time to consider pleas to excuse the negligence of parties who do not think enough of their appeals to attend to them in the time provided by statute. After such time the appellee is entitled to consider the litigation at an end.

The judgment dismissing the appeal is

Affirmed.

BeowN, J.,

dissenting. Upon the facts as found by the judge of the Superior Court, the defendant took an appeal in open •court from the judgment rendered, and paid the fees of the justice of the peace fixed by law, and demanded that the transcript be forwarded to the Superior Court. This was not •done. I think the defendant did all the law required of him, and that it was the duty of the justice to forward the appeal without further request. Having done all the law required, I think the defendant ought not to be charged with the justice’s neglect, and that the case should be docketed as upon recordari. Where there is no substantial negligence upon part of a litigant, his cause should not be dismissed. The law favors trials upon the merits.  