Docketing Appeal — Motion to Dismiss.
1. Where a case was tried below in the fall and docketed in this Court three days before the district was called at the opening of the spring term, a motion on the first day of the spring term to dismiss the appeal because not docketed seven days before the call of the district as required by rule 5, will be denied.
2. The ruling, that though an appeal is not docketed seven days before the call of the district to which it belongs, as required by rule 5, it will not be dismissed (when docketed at the next term here after the trial below) if it is docketed before the motion is made to dismiss, applies to the first as well as the other districts, as the appellee can file his motion to dismiss with the clerk whether the court is in session or not.
PER CURIAM.
This case, from the First District, was tried below last fall and was docketed here three days before the district was called at the opening of this term. The appellee moved on the first day of this term to dismiss the appeal because not docketed seven days before the call of the district, as required by Rule 5. We have held that though the appeal is not docketed seven days before the call of the district to which it belongs, it will not be dismissed (when docketed at the next term here after the trial below) if it is docketed before the motion is made to dismiss. Curtis v. R. R., 137 N.C. 308; Benedict v. Jones, 131 N.C. 474, and other cases there cited. The appellee contends that these decisions ought not to apply to the First District, because, if they do, an appellant from that district can always obtain six months' delay by docketing later than seven days before the call of the district, and thus the case will not stand for hearing at this term, and yet the appellee can not move to docket and dismiss if the appeal is docketed before Court meets for this term, since Court not being in session till the day the call of the First District begins, the appellee will have no opportunity to move to dismiss till after the appeal is docketed.
There would be great force in this suggestion but for the fact that if the appeal is not docketed seven days before the call of the district to which it belongs the appellee can file his motion to dismiss with the clerk whether the court is in session or not. He need not file it in open court. This is true of any district. When the call of the district begins, the motion (429) should then be called to our attention, if not before, and if it antedates the docketing of an appeal which was not docketed seven days before the call of the district, the motion to dismiss must be allowed. Here the appeal was not docketed seven days before the call of the district. The appellee, instead of filing his motion then with the clerk, did not file it till the first day of this term, when the call of that district began and after the appeal had been docketed. His motion to dismiss comes too late.
Motion Denied.
Cited: Vivian v. Mitchell, 144 N.C. 474; Laney v. McKey, ib., 632; Foy v. Gray, 148 N.C. 436.