#### SELWYN HOTEL COMPANY v. JAMES P. GRIFFIN et al.

(Filed 30 November, 1921.)

Appeal and Error — Motion to Dismiss — Rules oí Court — Frivolous Appeals — Relief—Judgments—Abuse of Process — Procedure.

Where the appellant’s case on appeal is due to be heard at the next ensuing term of the Supreme Court at the call of the district to which it belongs, and the appellee has moved to dismiss under Rule 17, upon the certificate of the clerk of the trial court and affidavits filed, showing that appellant’s defense was frivolous and only for advantages to be gained by delay to the appellee’s loss, and that the appellant had lost the right to have the case settled on appeal for the Supreme Court, and his answer to the motion is also frivolous, this Court will affirm the judgment in appellee’s favor rendered in the court below, and order the judgment to be certified down instanter to afford the appellee relief from the appellant’s abuse of the court’s process and procedure.

Appeal by defendants from Bay, J., at September Term, 1921, of Meckxenbueg.

This was a proceeding in summary ejectment, begun before a justice of the peace and tried at September Term, 1921. On 11 November, 1921, the defendants not having docketed a transcript, the plaintiff filed a certified statement from the clerk, from which it appears that at the trial the jury, upon issues submitted, found that the plaintiff was entitled to possession of the premises; that the market rental value since 1921 was $125 per month; and that the judge rendered judgment in favor of the plaintiff for possession of the premises and $125 per month rental from 1 January, 1921; that the defendant Charles H. Garmon appealed; that he had been allowed 15 days in which to serve case on appeal; that the term of court adjourned 17 September, 1921; that the defendant did not serve his case on appeal within said 15 days, and thereafter, on application to the judge, he was allowed another 15 days to make up and serve case on appeal, and that at the expiration of said time he had not done so, and upon said record the plaintiff moved to docket and dismiss under Rule 17, and also because upon its face the appeal was frivolous.

*540 H. 0. Dockery and John M. Bobinson for plaintiff.

Jake F. Newell for defendants.

ClaRK, C. J.

In addition to tbe facts above set out, W. T. Wilson, an officer of tbe plaintiff, tbe Selwyn Hotel Company, files an affidavit tbat tbe defendant C. H. Garmon and associates were occupying tbe barber sbop in tbe Selwyn Hotel in Charlotte, N. C., under a tbree-year lease, wbicb expired 31 December, 1920; tbat tbe said Selwyn Hotel Company duly leased said premises for tbe year 1921 to other parties for a monthly rental of $150 per month; tbat tbe defendant O. H. Garmon led tbe plaintiff and tbe said lessees to believe tbat be would vacate tbe premises at tbe termination of tbe lease, but at tbe end of bis lease be wrongfully and illegally refused to give up possession of said premises, and has wrongfully withheld tbe same to tbe serious damage and inconvenience to tbe plaintiff and tbe lessees since 1 January, 1921; tbat tbe only defense wbicb tbe said defendant has ever asserted was tbe failure of tbe plaintiff to give him notice of tbe termination of tbe lease, but tbat be has wrongfully and illegally held possession of said premises without any just cause or excuse, and that tbe appeal wbicb be took from tbe justice of tbe peace to tbe Superior Court, and tbat tbe appeal wbicb be took from tbe Superior Court to tbe Supreme Court were taken solely for purposes of delay, and tbat this delay is resulting in serious loss and inconvenience to tbe plaintiff.

This motion, with affidavits and certificate, was served on tbe attorney of tbe defendant 9 November, 1921. Tbe defendant, answering tbe appeal, simply asserts tbat be was not bound to bring up tbe appeal to this term of tbe Court, and tbat be has been unable to get a stenographer to make a copy of tbe transcript, she being very busy.

It is apparent tbat this is purely an attempt to use tbe process of tbe court, wbicb is intended to correct errors, for tbe purposes of delay, and tbat tbe appeal is entirely frivolous. It does not appear tbat there was any assertion of a bona fide defense either before tbe justice or in tbe Superior Court, nor is there any allegation of any defense in tbe answer to this motion.

In Barnes v. Saleeby, 117 N. C., 260, upon somewhat similar circumstances this Court held: “Tbe plaintiff’s motion to dismiss in this Court should be allowed whenever it appears in tbe record, as in this case, tbat no serious assignment of error is made. Blount v. Jones, 175 N. C., 708; Ludwick v. Mining Co., 171 N. C., 61.”

In Blount v. Jones, 175 N. C., 708, a case exactly in point, this Court held: “Appeals from tbe Superior Court as a matter of right must be taken bona fide for tbe purpose of reviewing alleged error, and when no serious assignment of error is made and it appears tbat tbe appeal is *541frivolous aud for tbe purpose of delay, it will be dismissed on appellee’s motion,” citing Ludwich v. Mining Co., 171 N. C., 61, in wbicb tbis Court beld, Brown, J., delivering tbe opinion, that, “While ordinarily an appeal lies to tbe Supreme Court from tbe Superior .Court, as a matter of right it is required that it must be bona fide for tbe purpose of reviewing some alleged error; and when from tbe record it appears that tbe appeal is frivolous and made solely for delay it will, upon due notice to tbe appellant, be dismissed upon appellee’s motion.”

It not only appears upon tbe record sent up, and by tbe affidavit in support of tbe motion to dismiss, to be a frivolous appeal, and from tbe answer thereto that there is no bona fide defense, but is not even alleged that tbe defense has given bond for payment of tbe judgment of tbe rent. But even if tbis bad been done, though not alleged, still there is no allegation of a bona fide defense even suggested in tbe answer, and as tbe defendant has lost tbe right to have tbe case settled on .appeal by not having done so within tbe prescribed time, to carry tbe case over to tbe spring term could only result in tbe appeal being affirmed at that time, and tbe plaintiff would be wronged by being kept out of possession for several months more. Tbe courts cannot allow their process to be thus abused.

Final judgment will be entered here affirming tbe judgment below, and tbis opinion will be certified down instanter to tbe Superior Court of Mecklenburg, Caldwell v. Wilson, 121 N. C., 473, 474, and tbe plaintiff, will be put in prompt possession of tbe premises. Barnhill v. Thompson, 122 N. C., 498, and other cases are to tbe same purport.

Affirmed.