#### L. D. POWELL & COMPANY v. W. W. ROGERS.

(Filed 29 September, 1920.)

Justices’ Courts — Appeal—Motions—(Recordari—Dismissal.

When tbe appellant from a judgment of a justice of tbe peace bas properly given his notice of appeal, paid the fee, but bas not moved in time for a recordari in tbe superior court, a motion to dismiss should be allowed.

Appeal by plaintiff from Devin, J., at tbe April Term, 1920, of Hebteobd.

This is an action begun before a justice of tbe peace, and beard on appeal before Devin, J., and a jury.

In tbe trial before tbe justice of tbe peace, bad on 20 June, 1917, judgment was rendered against tbe defendant for tbe sum of $188.75, with interest thereon from that date, and costs. Defendant in open court gave notice of appeal to tbe Superior Court, and paid tbe justice bis fee for making tbe return. Tbe justice of tbe peace filed bis return to notice of appeal in tbe office of tbe clerk of tbe Superior Court on *65816 November, 1917, and the appeal was docketed in the'Superior Court for á special term beginning 7 January, 1918.

At a term of court held in Hertford County, beginning 30 July, 1917, and more than ten days after the trial and judgment by the justice of the peace, defendant failed to apply for a writ of recordari in order to perfect his appeal; nor was such application made during a term beginning 15 October, 1917. The next term of court held in said county was a special term, beginning 7 January, 1918, at which term said appeal appeared on the docket. ... At that term plaintiff moved to dismiss the appeal, as ajipears in the record, which motion was continued until the next term. The motion to dismiss was heard before Kerr, J., at the following term, held in February, 1918, when said motion was denied, and the case continued for trial in the Superior Court. ■

To this ruling plaintiff excepted.

Upon trial in the Superior Court, verdict and judgment was rendered for the defendant, and plaintiff appealed.

W. D. Boone for plaintiff.

No counsel for defendant.

Peb Curiam.

The judgment is reversed on the authority of Davenport v. Grissom, 113 N. C., 38, and Bargain House v. Jefferson, at this term. The appeal from the justice must be dismissed.

Reversed.