#### WORTH v. WILMINGTON.

(Filed December 16, 1902.)

1. APPEAL — Rules of Court — Rules 5, 17 — Dismissal.

A motion by tbe appellee to docket and dismiss, made before tbe docketing of tbe transcript, tbougb not at tbe first opportunity, will be allowed.

2. APPEAL — Dismissal—Rules of Court — Rules 5, 17 — Transcript.

Where tbe trial judge fails to settle a case on appeal, so that tbe transcript may be docketed seven days before tbe call of the district, tbe appellant must docket so mucb of tbe record as be can obtain, or if none is obtainable, make affidavit of that fact and move for certiorari.

Action by W. E. Worth against the City of Wilmington. Action by the plaintiff to reinstate this case.

Meares & Ruark, for the plaintiff.

E. K. Bryan, for the defendant.

Clark, J.

The appellant failed to docket his transcript on appeal seven days before the beginning of the call of the docket of the district to which it belongs. Rule 5, 128 N. C., 634. The appellee might have then moved to docket and dismiss. Rule 17, 128 N. C., 638. The appellee did not move to dismiss at this his earliest opportunity, but he subsequently made the motion before the appellant docketed, and the appeal was dismissed. The appellant now moves to reinstate :

1. Because the appellee did not move to dismiss at the first opportunity. But he could so move at any subsequent time, provided it is done before the appellant dockets his appeal, just as the appellant can docket at any time during that term subsequent to the required time, provided he does so before the appellee moves to- docket and dismiss under Rule 17. Benedict v. Jones, at this term, and cases there cited.

*5332. The appellant moves to reinstate because-, as he alleges, the Judge had not settled the “cabe on appeal” in time to permit the same to be sent up and filed seven days before beginning the call of the docket of the district to which the appeal belongs. But, in such case, it was the duty of the appellant to docket the rest of the record, or all that he could obtain (or, if none obtainable, with affidavit of that fact), and move for a writ of certiorari. This has been uniformly held, and numerous cases are cited in Burrell v. Hughes, 120 N. C., 277, upon which the Court said: “There are some matters at least which should be deemed settled, and this is one of them,” and several cases since are cited in Norwood v. Pratt, 124 N. C., 745. Since which last case, the Court has followed the rule therein settled without deeming it necessary to add any opinions to those already published and reiterated so often. The motion to reinstate is denied.

Motion Denied.