#### LONNIE C. MIMMS v. SEABOARD AIR LINE RAILWAY COMPANY et al.

(Filed 3 May, 1922.)

Appeal and Error — Docketing—Dismissal—Certiorari—Court’s Discretion —Consent.

Where a case on appeal has not been docketed by appellant within the time required by the rule of practice in the Supreme Court regulating it, and a motion has not been duly made for a certiorari, it will be dismissed, it being discretionary with the court as to whether the motion for this writ will be allowed, which the consent of- the parties cannot affect.

Appeal by plaintiff from Bay, J., at April Term, 1921, of ANSON.

Civil action to recover damages for an alleged negligent personal injury. .

Plaintiff, express messenger on train No. 13, running from Wilmington to Charlotte, was injured in a wreck on the night of 2 May, 1919; said wreck occurring about two miles west of Lilesville, and being caused by a derailment of the train.

From a verdict and judgment in favor of defendants, the plaintiff appealed.

James 8. Harming, McLendon & Covington, and Douglass & Douglass for plaintiff.

B. Vance Hervry and McIntyre, Lawrence & Proctor for defendants.

Stacy, J.

Seaboard passenger train No. 13, running from Wilmington to Charlotte, was wrecked on the night of 2 May, 1919, at a point approximately two miles west of Lilesville in Anson County. Investigation made on the night of the wreck showed that the train had been derailed by means of a “draw-bar” unlawfully placed on the railroad track by some person or persons, at that time unknown to the defendants. Plaintiff was an express messenger in the employment of the defendant American Railway Express Company, and was in charge of *437tbe express ear on tbe wrecked train. He brings suit against tbe American Railway Express Company, tbe Seaboard Air Line Railway Company, and tbe Director General of Railroads, to recover damages for injuries alleged to bave been sustained in said wreck. Tbe jury having answered tbe issues of negligence in favor of tbe defendants, there was a judgment dismissing tbe action and taxing tbe plaintiff with tbe costs.

We bave carefully examined tbe record and bave been unable to find any reason for disturbing tbe result below. TJpon tbe merits, we think tbe judgment must be affirmed. No reversible error has been shown.

It also appears that this case was tried in April, 1921. Tbe appeal, therefore, should bave been docketed and beard at tbe last term; or, at least, tbe record proper should bave been seasonably docketed here and motion duly made for a certiorari. This latter writ is a discretionary one, and counsel may not dispense with it by agreement. In re McCade, ante, 242; S. v. Johnson, post; S. v. Hooker, post.

Animadverting upon a similar state of facts, in S. v. Trull, 169 N. C., 370, tbe present Chief Justice, speaking for a unanimous Court, said: “We note that this trial was bad in June, 1914. Under tbe statute and rules of tbe Court this appeal was required to be docketed at ,the fall term of this Court before tbe call of tbe docket of tbe district to which it belongs, under penalty of dismissal. Rules 5 and 7, 140 N. C., 540, 544; Rev., 591; Pittman v. Kimberly, 92 N. C., 562, and numerous cases thereto cited in tbe Anno. Ed., and Burrell v. Hughes, 120 N. C., 277, citing numerous cases, and with numerous annotations in tbe Anno. Ed. It appears in tbe record that tbe solicitor agreed with tbe prisoner’s counsel that tbe case might be postponed and docketed at this term (Spring Term, 1915). This was an irregularity, and was beyond bis authority. Tbe statute must be complied with and tbe cause docketed at tbe next term here after tbe trial below. If in. any case there is any reason why this cannot be done, tbe appellant must docket tbe record proper and apply for a certiorari, which this Court may allow, unless it dismisses tbe appeal, and may then set tbe case for trial at a later day at that term or continue it, as it finds proper. It is not permitted for counsel in a civil case, nor to tbe solicitor in a State case, to assume tbe functions of this Court and allow a cause to be docketed at a later term than that to which tbe appeal is required to be brought by tbe statute and tbe rules of this Court.”

No error.