#### BLAIR v. COAKLEY.

(Filed November 15, 1904).

1. APPEAL — Case on Appeal — Findings of Court.

Where the ease on appeal prepared by counsel conflicts with a statement of a fact found by the judge, the latter must control.

2.'APPEAL — County Commissioners — Highways—Acis 1901, oh. 28— The Code, see. 20S9.

Under Acts 1901, ch. 21, sec. 1, an appeal from the action of the county commissioners in altering a public road should be taken to the next term of the superior court, though it was a criminal term.

3. HIGHWAYS — Appeals — County Commissioners — Justices of the Peace — Highways—The Code, secs. 875, S88, 565.

An appeal from the board of county commissioners in establishing a public road should be taken in accordance with those sections of The Code applicable to appeals from a justice of the peace.

ActioN by S. 0. Blair and others against S. F. Ooaldey, beard by Judge B. B. Peebles, at August Term, 1904, of the Superior Court of TjnioN County.

This was a proceeding to alter a public road over the land of the defendant, brought before the Board of Commissioners of Union County and heard in July, 1904, on or prior to the 8th day of that month. The defendant, through his counsel, entered a special appearance and moved to dismiss the proceeding upon the following grounds: 1. For that the petition does not state over whose land the proposed road would run. 2. For that it does not appear that the persons over whose land the proposed road would run have been duly notified. 3. For that it appears that the persons over whose land the proposed road runs have not been notified. 4. For that it does not state that the proposed road is a public necessity.

*406Tbe board overruled tbe motion and proceeded to bear and determine tbe case upon the evidence. They decided that tbe alteration of tbe road was a public necessity and granted tbe prayer of tbe petition. Tbe defendant excepted and appealed under section 2039 of Tbe Code. He gave due notice of bis appeal and on July 8 filed a bond to secure tbe costs of tbe appeal as required by tbe board, and asked that proper transcript of tbe proceedings be sent to tbe Superior Court. He took no further action in tbe matter, and it does not appear that be either paid or tendered payment of tbe costs of the transcript. The next term of tbe Superior Court after tbe appeal was taken commenced on tbe first day of August, 1904, and was for the trial of criminal cases only (Acts 1901, chap. 28, sec. 1, p. 169), although tbe second section of that act (p. 115) provides as follows: “Civil process shall be returned to, and pleadings filed at, all the courts herein designated as exclusively criminal; motions in civil actions may be beard upon due notice at such criminal terms; and trials in civil actions, which do not require a jury, may be heard at such criminal terms by consent.” Tbe next term of tbe Court was held on tbe 22d day of August. It is provided by tbe act just mentioned that “tbe first week (of that term) shall be for tbe trial of criminal cases and tbe second week for the trial of civil cases alone.”

Tbe week for tbe trial of civil cases commenced then on tbe 29th day of August. On tbe 31st day of August tbe plaintiffs caused tbe papers to be filed and tbe case to be docketed in tbe Superior Court, and moved to dismiss tbe appeal, tbe defendant having taken no action before tbe board or in tbe Superior Court by motion for a recordari or for a rule on tbe board to send up tbe case. Tbe Judge allowed tbe motion of tbe plaintiffs and dismissed tbe appeal. Defendant excepted and appealed.

*407 Williams & Lemmond, for tbe plaintiffs.

Redivine & Black, for tbe defendant.

Walicer, L,

after stating tbe facts. It is stated in tbe record, as a fact found by tbe Judge, that tbe defendant, after tbe- appeal was dismissed, moved to dismiss tbe case for tbe reasons set out in bis motion to tbe same effect before tbe board. Tbis motion was denied and defendant excepted. It is stated in tbe case on appeal prepared by counsel that tbis motion to dismiss tbe case was made before tbe appeal was dismissed, but in tbis conflict tbe finding of tbe Judge and tbe record must control. Tbe motion certainly came too late, even if it should have been granted bad it been made earlier. Davenport v. Grissom, 113 N. C., 38.

We are of tbe opinion that tbe appeal should have been docketed at tbe term of tbe Court which commenced on tbe first Monday of August (August 1), although it was for tbe trial of criminal cases alone. Tbe provisions of section 2, chap. 28, Acts 1901, are very broad and comprehensive, and are certainly sufficient in their scope to include a case of tbis kind. By section 2 civil process may be returned to, and pleadings filed at, that term; motions may be beard upon notice and trials bad in all civil actions which do not require a jury. See also, section 7. It seems from these provisions of tbe law that it was intended that all papers in civil eases, required to be returned to tbe next term of tbe Superior Court, should be so returned without regard to whether it is a civil or criminal term, and that such proceedings may be bad in any civil case as do not require the intervention of a jury. Tbis being so, we cannot see why tbe appeal in tbis case was not required to be sent up to tbe first term of tbe Court, although it was a criminal term, as the motion of tbe defendant, upon bis special appearance, to dismiss, could have been beard at said term, and if tbe Court had decided *408either for or against the- defendant and this Court had approved the judgment, provided the case had been brought here by a further appeal, it would have finally determined the action. Besides, the appellee has the right to have the case there, if the appellant intends to prosecute his appeal, so that he may make such motions as may be necessary to protect his rights and to speed the trial of the cause, and this seems to be the true intent of section 2 of the act. So that the case comes not only within the spirit but also within the letter of the act. But this Court, upon a full consideration of this statute, has decided that the appeal must be taken and the return made to the next term, whether criminal or civil, under the provisions of section 2. Johnson v. Andrews, 132 N. C., 376; Pants Co. v. Smith, 125 N. C., 588. Again, in all proceedings to lay out or alter public roads The Code, see. 2039, gives the right of appeal but does not provide any method or machinery for perfecting and prosecuting the appeal except the requirement that a bond shall be given by the appellant to the appellee “as provided in other cases of appeal,” and that the Superior Court at term shall hear the whole matter anew. It is further enacted by that section that an appeal may be taken from the judgment of the Superior Coiirt “as is provided -in other cases of appeal” in The Code. In the absence of any procedure prescribed by statute, we must proceed by analogy to the practice in other like cases, so that the intent and purpose of the Legislature may be effectuated as near as may be, and that the right of appeal may be preserved to the citizen, and at the same time not abused. It is well, therefore, to adopt the rules regulating appeals from justices’ courts as being more nearly analogous to those which should govern in cases like the one under review, and more likely to carry out the intention of the Legislature and less apt to work injustice to the parties. We think, further, that those rules are reasonable *409and necessary to prevent delay and they can easily be observed. Pants Co. v. Smith, supra. It is required in the case of an appeal from a .justice that he shall, within ten days after the appeal is taken and notice given, make a return to the appellate court and file with the Clerk thereof the papers, proceedings and judgment in the case and the notice of appeal. He may be compélled to make such return by attachment, but he is not bound to make it until his fees are paid. The appeal is heard upon the original papers. Provision is made for correcting the return and for the giving of an undertaking by the appellant. The Code, sec. 875— 883 and section 565. It cannot be successfully maintained that the defendant has complied with those requirements of the statute, but whether or not he should be held to a strict observance of them we do not think that, reasoning from general principles, he has shown such a degree of diligence as entitles him to the favor or consideration of the Court. An appellant who merely prays an appeal and files a bond does not take an appeal within the meaning of the statute. Wilson v. Seagle, 84 N. C., 110. Without discussing the question whether it is his duty to see that a proper transcript is sent to the appellate court, he must at least put the Clerk under the obligation to act by paying or tendering his fees. Sanders v. Thompson, 114 N. C., 282; Andrews v. Whisnant, 83 N. C., 446. But the appellant took no action at all. He did not move at the first term for a recordari or rule on the commissioners to send up the case. If he found at the first term of the Court that the transcript or the papers had not been sent up and the case duly docketed, it was his plain duty, as has been repeatedly decided by this Court, to move at once for the necessary writ or process to perfect his appeal. Howerton v. Henderson, 86 N. C., 718; Suiter v. Brittle, 92 N. C., 53; Pittman v. Kimberly, 92 N. C., 562; Wilson v. Seagle, supra. When the appellant fails to per*410form bis duty, tbe appellate court baying cognizance of tbe case may, upon tbe papers being filed and tbe case docketed, dismiss tbe appeal. Avery v. Pritchard, 93 N. C., 266. The law requires this diligence on tbe part of the appellant in perfecting and prosecuting bis appeal in order that tbe successful party may not be subjected by delay to tbe risk of losing tbe fruits of bis victory or postponed in their enjoyment by tbe laches of bis opponent. If an appellant should be permitted to move in a cause at bis convenience and pleasure tbe right of appeal which is given for a useful purpose could easily be made to harass and vex tbe appellee (Ballard v. Gay, 108 N. C., 544; State v. Johnson, 109 N. C., 852; Davenport v. Grissom, supra), who is entitled to know when tbe litigation is at an end and to know, too, within a reasonable time.

Tbe Act of 1899, chap. 443,, provides that in appeals from justices’ courts, if tbe appellant fails to docket bis appeal in time the appellee may docket tbe case and upon motion have tbe judgment of tbe justice affirmed and recover tbe costs of the appeal. Tbe judgment affirming is in substance equivalent to a judgment dismissing tbe action. Tbe latter is given when no appeal has been docketed, as in this case, and tbe former when tbe appeal has been docketed and tbe record sent up, but no case on appeal has been filed. It certainly was not intended that tbe Court should look into the record for the purpose of passing upon the merits of tbe exceptions in tbe lower Court, for this would be to give tbe appellant, who has been in fault, tbe full benefit of bis appeal, and tbe act would be self-destructive. Davenport v. Grissom, supra. In construing a statute we must ascertain tbe intention, for when a case is brought clearly within the intention of tbe law it is within tbe law itself. People v. Lacombe, 99 N. Y., 43. It is manifest what mischief was intended to be remedied, and we must so interpret tbe statute *411as to suppress the mischief and advance the remedy. In view of the facts and circumstances of this case we believe the law has been substantially followed by the Court below.

No Error.