Under the Act of 1777 (Rev., ch. 115, sec. 77), directing the time within which the transcript shall be filed in the Superior Court, in appeals from the county court, if the appellant fail to file the transcript until after the time prescribed, the Court has no discretion to permit the cause to be placed on the trial docket, but the judgment must be affirmed.
The judgment was affirmed, on the second day of the term; unless cause be shown to the contrary, on the argument day.
On which day the defendant's affidavit was read, stating that the judgment had been obtained at the last session of Jones county court; that there were but thirty-three days between the last day of that session and the first of this term; that the defendant was sick abed on the day on which the transcript was to be carried up; that he came down in a boat, being unable to ride; that he arrived time enough to file the transcript, but discovered on his landing that his pocketbook which contained it had been accidentally left behind; that he returned immediately home and came back on the next day with the transcript, but was informed it could not be received, it being then one day too late; that he came back on the next day to advise with counsel and was directed to file the transcript, which he did. Whereupon he prayed that the cause might be placed on the trial docket.
STONE, J.
If the Court had any discretion to exercise, this would be a proper case to use it; but the act is positive.
McCOY, J.
The Act of Assembly leaves the party in this case without a remedy. It is not within the power of the Court to create one for him. It has often been adjudged so.
The judgment was affirmed absolutely.
McCOY, J.
NOTE. — See Robertson v. Stone, 2 N.C. 401; Hood v. Orr, 4 N.C. 584. The law regulating the mode in which appeals shall be carried up from the county to the Superior Court has been altered by the Acts of 1816, ch. 903, sec. 3, and 1821, ch. 1117, sec. 1 and 5 (1 Rev. Stat., ch. 4, sec. 3, 4, and 5).
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