#### STATE v. ROBERT JOHNSON.

(Filed 1 March, 1922.)

1. Procedure — Supreme Court — Rules of Court — Constitutional Law.

The procedure in the Supreme Court is vested by constitutional authority entirely with this Court, without power of the Legislature to* modify it.

2. Appeal and Error — Docketing Appeal — Certiorari—Motions—Laches.

Whether the appellant has legal excuse in. not docketing his case on appeal in time for it to be regularly heard at the call of the district to-which it belongs is a matter for the Supreme Court to determine upon his: docketing the record proper and moving for a certiorari under the rule.

S. Same — Statutes—Discretion of Court — Case—Extension of Time.

Where the appellant has not docketed the record proper and moved fora certiorari under the rules, he may not successfully resist appellee’s-motion to dismiss for not having his case docketed in the required time by attempting to show that such failure was caused by the trial judge in extending the time for the preparation and service of the case and counter-case. Berrible, an unreasonable time given for such purpose will not be-recognized by the Supreme Court.

Appeal by defendant from Oranmer, J., at August Term, 1921, of' Chatham.

AUorney-General Manning and Assistant Attorney-General Nash for the State.

Wade Barbee and Long & Bell for defendant.

Clark, C. J.

At August Term, 1921, of Chatham, the defendant was-, convicted of having intoxicating liquor in his possession for the purpose-of sale, and also of receiving more than one quart, in one package, at one time, in fifteen days, and appealed. The appeal was not docketed in this Court until 11 February, 1922. The August Term of Chatham was. held before the commencement of the Fall Term, 1921, of this Court, but there was no record proper docketed, and the motion of the Attorney-General to dismiss must be allowed.

Rule 5 of this Court requires that “the transcript of the record on appeal from a judgment rendered before the commencement of a term of this Court must be docketed at such term seven days before entering upon a call of the docket of the district to which it belonged and stand for argument in its order.” There are exceptions as to the first three districts only. The uniform practice of this Court, under the rules found necessary for the proper dispatch of the public business, requires that when this is not done, if there is any good excuse as for failure of the *731judge to settle tbe case on appeal or otherwise, still tbe record proper must be docketed seven days before tbe call of tbe docket of tbe district at tbe proper term and an application made to tbis Court for a certiorari, upon wbicb motion, based upon affidavit, tbe Court will decide wbetber a certiorari will issue or not to supply tbe defect. Tbe appellant cannot decide tbis matter for bimself.

In tbis case tbe record proper was not docketed at last term in tbe time required by tbe rules, and no motion for certiorari was asked for, and tbe appeal must be dismissed.

Tbe excuse offered by tbe appellant for not docketing tbe record proper at last term is tbat tbe judge granted 60 days in wbicb tbe appellant could serve tbe case on appeal, and tbe State was allowed 60 days to reply, and tbat if tbis time bad been occupied, tbe case could barely bave been settled in time to bave been beard at last term. But even taking tbis to be so, tbat did not dispense witb tbe duty of tbe appellant to obtain from tbe clerk below a transcript of tbe record proper, and on an affidavit showing no neglect on bis part, be should bave moved for a certiorari. It is by no means certain tbat if tbe appellant bad taken tbe 60 days to serve tbe case on appeal tbat tbe State would bave been as derelict, or as lacking in promptness in serving tbe counter case.

At any rate tbe matter should bave been presented to tbis Court by following tbe recognized rule of docketing tbe transcript and tbe record proper and asking for certiorari.

Tbe procedure in tbis Court by tbe Constitution is left entirely to tbis Court and no act of tbe Legislature has sought to, or could, modify tbe procedure here. Herndon v. Ins. Co., 111 N. C., 384.

It is'in tbe interest of tbe public and necessary for tbe proper dispatch of tbe business of tbe Court tbat there should not be unnecessary delay in settling cases on appeal. It would only result in making tbe settlement of such cases more difficult if there were greater lapse of time, and would increase tbe difficulty of settling disputes as to what happened at tbe trial.

Prior to tbe adoption of tbe Reformed Procedure in 1868, all cases on appeal were settled by tbe judges, whose practice was to perform tbis duty before leaving tbe court at wbicb tbe case was tried. It was thought tbat their duty in tbis respect might be lightened by changing tbe statute, so as to permit counsel to agree upon settlement of tbe case on appeal and to call in tbe aid of tbe judge only where counsel failed to agree. Tbe time originally allowed for tbis purpose was five days for tbe appellant to serve case on appeal and three days for tbe appellee to serve a counter case. Tbis was lengthened from time to time until by our statute it is now (C. S., 643) fifteen days to serve case on appeal and ten days to serve counter case, except where tbe parties by consent extend *732tbe time. The result has not been beneficial. There has been an increasing tendency, to postpone and put off the settlement of cases on appeal by lengthening the time, aud the last Legislature has permitted the judges to extend the time even when counsel do not agree.

But this Court has never changed its rule, of which it is sole judge, that in every case when the case on appeal is not docketed in the time required, at thé next term, the appellant must docket the record proper and ask for a certiorari. Whenever this is not done the case not docketed until the next succeeding term will be dismissed. S. v. Telfair, 139 N. C., 555 (2 Anno. Ed.), and cases there cited; Buggy Co. v. McLamb, 182 N. C., 762; Rogers v. Asheville, ibid., 596.

It is true that under this recent statute by which judges can extend the time to serve cases on appeal, in this instance sixty days were allowed on each side, but under the supervisory power over the lower courts which is wisely given to the courts on appeal in this, as in other states, we are compelled to say that exercise of the power to extend time, especially in a small case like this, to sixty days on each side is inadvisable and cannot receive the approval of this Court. The case, in its nature, is very brief and might have been settled certainly within the statutory time. It will be much better if all cases, when possible, especially these small cases, were always settled while the facts are fresh and before the judge leaves the court. Certainly in a matter of this kind, the enormous time allowed of sixty days on each side is without justification.

But however that may be, the Rules of the Court, which are committed by the Constitution, entirely to this Court to formulate and control (Horton v. Green, 104 N. C., 400), require that if a case for any reason is not docketed at the first term after trial below a transcript of the record proper must be docketed in apt time and a certiorari asked for. This not having been done, the motion to dismiss is allowed.

Note. — In No. 86, S. v. Spain, from Chatham, Fall Term, 1921, conviction for intoxicating liquor and aiding and abetting same; and No. 87, S. v. Phillips, conviction at August Term, 1921, of Chatham, for aiding and abetting in the manufacture of intoxicating liquor, there was the same state of facts — no record proper having been docketed nor application for certiorari in apt time at the Fall Term, being first term after the trial below — and the motion of the State to dismiss the appeal must be allowed.