{
  "id": 11271073,
  "name": "LUZANIA MITCHELL v. MARY MELTON et als.",
  "name_abbreviation": "Mitchell v. Melton",
  "decision_date": "1919-09-17",
  "docket_number": "",
  "first_page": "87",
  "last_page": "88",
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state",
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      "category": "reporters:state",
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      "category": "reporters:state",
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      "cite": "140 N. C., 428",
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      "reporter": "N.C.",
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      "cite": "144 N. C., 472",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "weight": 2,
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    {
      "cite": "131 N. C., 473",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "case_paths": [
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  "last_updated": "2023-07-14T18:32:08.818827+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "LUZANIA MITCHELL v. MARY MELTON et als."
    ],
    "opinions": [
      {
        "text": "Clarx, O. J.\nThe defendants not having filed the transcript on appeal on 2 September, seven days before entering upon the call of'the docket of the district to which it belonged, as required by Rule 5, the plaintiff filed his motion under Rule 17 to docket and dismiss. But this motion was defective because it was not accompanied by the certificate of the clerk of the court as required by said rule.\nThe defendants thereupon filed said transcript on the next day, 3 September. The clerk\u2019s certificate to complete the appellee\u2019s motion to dismiss was filed thereafter on 5 September.\nWhen the appellant fails to docket his appeal at the required time the appellee can move to dismiss at that time or subsequently during the term, provided he does so before the appellant cures the defect by docketing the transcript (Benedict v. Jones, 131 N. C., 473; Vivian v. Mitchell, 144 N. C., 472), and for that purpose we have held that the appellee can file his motion even in vacation, or on a day when the court is not in session. Craddock v. Barnes, 140 N. C., 428; Vivian v. Mitchell, supra.\nBut if tbe appellant files bis record before such motion is made by tbe appellee, if at tbe term at which tbe appeal should be taken, it is too late then for the appellee to move to dismiss. This has been held in numerous cases. Laney v. Mackay, 144 N. C., 630; Foy v. Gray, 148 N. C., 436; Gupton v. Sledge, 161 N. C., 214.\nIn this case tbe appellee moved in time, but be did not comply with Rule 17 because of the absence of tbe certificate of tbe clerk below which is tbe indispensable basis of tbe motion to dismiss. It was therefore no motion. In tbe meantime, before the appellee infected bis motion by filing such certificate, tbe appellant cured his laches by docketing the transcript on 4 September.\nThe case was therefore regularly on docket before tbe appellee filed an efficient motion, but the case being docketed less than seven days before the call of the district it stands continued under Rule 5.\nThe motion to dismiss came too late.'\nMotion denied.",
        "type": "majority",
        "author": "Clarx, O. J."
      }
    ],
    "attorneys": [
      "Winston & Matthews for plaintiff.",
      "W. B. Johnson and B. 0. Bridget for defendants."
    ],
    "corrections": "",
    "head_matter": "LUZANIA MITCHELL v. MARY MELTON et als.\n(Filed 17 September, 1919.)\nAppeal and Error \u2014 Transcript\u2014Docket\u2014Dismiss\u2014Motions\u2014Rules of Court.\nThe 'certificate of tlie clerk of the Superior Court is necessary to complete appellee\u2019s motion to dismiss (Rule 17) for appellant\u2019s failure to file his transcript on appeal within seven days before entering upon the call of the docket to which it belongs (Rule 5) ; and where the appellee has failed to comply with Rule 17 until after the appellant has docketed his transcript in compliance with Rule 5, his motion will be denied and the hearing continued under Rule 5.\nAppeal by defendants from Gui\u00f3n, J., from May Term, 1919, of Bertie.\nWinston & Matthews for plaintiff.\nW. B. Johnson and B. 0. Bridget for defendants."
  },
  "file_name": "0087-01",
  "first_page_order": 151,
  "last_page_order": 152
}