#### W. O. HOWARD et al. v. JAMES E. SPEIGHT et al.

(Filed 15 September, 1920.)

Appeal and Error — Failure to Docket Appeal — Second Term — Dismissal— Motions — Rules of Court.

The requirement of Supreme Court Rule 17, that the appellee may docket the certificate and, on motion, have the case dismissed, -if not docketed by the appellant in time to be heard at the call of the district aJ the term of the Supreme Court next ensuing that of the trial, applies only to that term; and where the appellant has docketed his case after that term the case will, on motion, be dismissed at the following term of the Supreme Court (Rules 5 and 16), and the failure of the appellee to have previously moved to dismiss is not a waiver of his right.

Appeal by defendant from Devin, J., at November Term, 1919, of Edgecombe.

Motion to dismiss. This was an action for partition at November Term, 1919, of Edgecombe. By consent, the cause was heard at chambers, 15 December, 1919, and notice of appeal given, bond being fixed at *654fifty dollars. Tbe “case on appeal” was settled by tbe judge 9 January, 1920. Tbe appeal was not docketed bere at spring term, nor until 3 August, 1920. At tbe beginning of tbe call of tbe district at tbis term, the appellee moved to dismiss because not docketed at tbe spring term as required by Rule 5 of tbis Court.

W. 0. Howard and James Pender for plaintiffs.

F. C. Harding, F. W. Gaylord, and B. W. Winston for defendants.

Clark, C. J.

Tbe motion to dismiss must be allowed, Rules 5 and 16 of tbis Court, 174 N. C., 828, 831.

Tbe settled practice of tbis Court under tbe above rules is tbus summarized in Porter v. R. R., 106 N. C., 479:

1. Appeals in causes tried before tbe commencement of a term of tbis Court must be docketed (as tbe rule now stands) “At sucb term, seven days before entering tbe call of tbe docket of tbe district to wbicb tbey belong and stand in tbeir order for argument.”

2. If not docketed in such time, the appellee may docket the certificate under Rule 17, and have tbe appeal dismissed.

3. If tbe appellant does not do tbis, and tbe appeal is docketed at such term of tbis Court, wbicb begins next after trial below, though after tbe perusal of tbe district to wbicb it belongs, tbe appellee cannot move to dismiss, unless be does so before tbe appeal is docketed. Bryan v. Moring, 99 N. C., 16. But the neglect of the appellee to move to doclcet and dismiss extends no further, and if the appeal is docketed at a term of this Court after the one at which it is required to he filed, the appeal will he dismissed on motion.

In Porter v. R. R., supra, and in other cases since, tbe appellant has insisted, as in tbis case, that as tbe appellee did not move to docket and dismiss when tbe district was called at tbe term of tbis Court beginning next after tbe trial below, tbis was a waiver, and tbe appellant could docket at tbis term. This' was expressly overruled in Porter v. R. R., supra; Hinton v. Pritchard, 108 N. C., 412, and in four other cases at tbai term, and in every case since.

In Johnston v. Whitehead, 109 N. C., 209, tbe Court says, in addition, that if tbe appellant bad lost bis appeal without negligence on bis part, it was bis duty to apply for a certiorari at or before tbe time tbe appeal should have been docketed, i. e., at tbe first term after tbe trial below, and that not having done so, sucb application cannot be made at tbis term; and also that when tbe appeal was docketed at tbis term no notice of a motion to dismiss is required, though in tbis case sucb notice was given.

Among many cases affirming tbe above rulings are: Sondley v. Asheville, 110 N. C., 90; S. v. James, 108 N. C., 792; Pipkin v. Green, 112 *655 N. C., 356; Pittman v. Kimberly, 92 N. C., 563; Graham v. Edwards, 114 N. C., 230; Paine v. Cureton, ib., 607, and a very large number of others, all to tbe same effect, and none to tbe contrary. Besides, there have been many eases dismissed under tbe above authorities without written opinion, as the ruling is so well settled.

As was said in Burrell v. Hughes, 120 N. C., 278, “There are some matters at least which should be deemed settled, and this is one of them.” This Court has repeatedly called attention to the fact that appellees have their rights as well as appellants, and that “a delay of justice” is condemned by Magna Carta equally with a “denial of justice.” Shakespeare quotes the “delays of justice” among the greatest “ills that flesh is heir to.” ' The appellant not having spoken when he could have been heard, ought not now to be heard when he should be silent.

If the failure to docket this appeal at spring term here had been due to negligence of counsel, this would not protect the appellant, who at the very least should have applied for a certiorari, when the district was called at that term. Vivian v. Mitchell, 144 N. C., 473, and numerous cases there cited, and citations to that case in Anno. Ed. Lindsey v. Knights of Honor, 172 N. C., 820. In Barber v. Justice, 138 N. C., 21, it was held that this vicarious negligence of counsel would not .excuse appellant from paying attention to the appeal. Roberts v. Allman, 106 N. C., 391.

Dismissed.