#### PICKENS & BRADLEY v. G. V. WHITTON and C. M. HERRING.

(Filed 14 December, 1921.)

1. Appeal and Error — Courts — Justices’ Courts— Superior Courts— Recordari.

Where the defendant has appealed from a judgment in a justice’s court, and has failed to docket Ms case at the next term of the Superior Court commencing ten days or more after the rendition of the judgment, in order for him to obtain a recordari from the Superior Court he must move therefor at the earliest moment, and also show a meritorious defense.

3. Same — Laches—Meritorious Defense.

Upon motion for a recordari to issue from the Superior Court to bring up an appeal from a justice’s court, the mere allegation in an affidavit that the movant has a meritorious defense is insufficient, it being required that the facts be shown for the court to determine the matter.

3. Appeal — Recordari—Statutes.

The provisions of C. S., 660, as to the writ of certiorari, have no application where an appeal from the justice’s court has been lost through the default of the appellant, and the failure of the appellee to docket and dismiss is no waiver of the appellee’s rights upon appellant’s motion for a certiorari.

Appeal by defendants from Adams, J., at August Term, 1921, of BuNcombe.

This action was begun before a justice of the peace, and on 4 June, 1921, judgment was rendered by said justice against the defendants, who appealed. On 13 August the defendants applied to Adams, J., in the Superior Court, for recordari. The motion was refused, and the petitioner appealed.

W. P. Brown for plaintiffs.

Ruffner Campbell for defendants.

OlaeK, C. J.

The justice of the peace rendered judgment against the .defendants 4 June, 1921. The next term of the Superior Court began within two days thereafter, and it was not incumbent upon the appellants to docket the appeal at that term, it being within less than 10 days, though they could have done so if they had chosen. But the appeal was required to be docketed at the next term of the Superior Court, which began on 11 July, being for the trial of both civil and criminal causes, Barnes v. Saleeby, 177 N. C., 256; Abell v. Power Co., 159 N. C., 348; Peltz v. Bailey, 157 N. C., 166; Blair v. Coakley, 136 N. C., 405, and other cases cited under C. S., 1532. The next term thereafter began on *7801 August, 1921, and was for the trial of civil actions only. Tbe appellants took no action until towards tbe close of tbis term, wlien on 13 August they applied for recordari, wbicb was refused.

To enable an appellant who bas not docketed his appeal within tbe time required by tbe statute, C. S., 1532, i. e., at tbe first term of tbe Superior Court beginning not less than 10 days after tbe appeal was taken, to bring up bis appeal by recordari be must show both (1) a lack of laches on bis part; (2) a meritorious defense. An inspection of tbe court’s findings of fact in tbis case shows that tbe defendant bas not brought himself within tbe rule in either particular.

1. Tbe petitioner must move for the writ of recordari at tbe earliest moment, and his failure to do so will defeat bis right thereto. Boing v. R. R., 88 N. C., 62; Hahn v. Guilford, 87 N. C., 172.

2. Tbe petitioner has not shown a meritorious defense. Tedder v. Deaton, 167 N. C., 479; Hunter v. R. R., 161 N. C., 503; Marler v. Clothing Co., 150 N. C., 519; Pritchard v. Sanderson, 92 N. C., 41.

It is true that tbe defendants allege in general terms that they have a meritorious defense, but they do not set forth sufficient facts to justify the court in so bolding.

Tbe defendants contend that C. S., 660, provides: “If tbe appellant shall fail to have bis appeal docketed as required by law, tbe appellee may, at tbe term of court next succeeding tbe term to wbicb tbe appeal is taken, have tbe case placed upon tbe docket, and upon motion tbe judgment of the justice shall be affirmed,” and argues that failure to do so is a waiver of objection on tbe ground that tbe appellants failed to docket tbe appeal at tbe first term of fhe court beginning more than 10 days after tbe judgment was taken before tbe justice of tbe peace. But tbis Court bas often held that tbis remedy, like that of docketing and dismissing appeals to tbis Court under Rule 17, is optional with tbe appellee, and that a failure to exercise such right cannot avail an appellant who bas not brought up bis appeal in apt time. Davenport v. Grissom, 113 N. C., 38, and other cases cited under C. S., 660.

It is absolutely necessary that there should be a regular order of procedure within tbe courts. Tbe right to appeal is not an absolute.right, but dependent upon tbe observance of prescribed regulations. If that were not so, at least half of tbe 'time wbicb tbe courts can apply to the trial upon their merits of appeals wbicb have been brought up by those diligent to observe tbe procedure of tbe court will be devoted to tbe consideration of excuses by those who have not been careful to do so.

Tbe defendants further contend that C. S., 660, provides that tbe writ of recordari may issue in cases heretofore allowed by law, but those cases are “where tbe party bas lost bis right to appeal otherwise than by *781Ms own default.” Marsh v. Cohen, 68 N. C., 283. See instances cited under C. S., 630, under beading "Recordari.”

Tbe motion for recordari was properly denied. Barnes v. Saleeby, 177 N. C., 256, and cases there cited.

Affirmed.

Adasis, J., did not sit.