#### S. E. FINCH et al. v. COMMISSIONERS OF NASH COUNTY et al.

(Filed 23 September, 1925.)

Appeal and Error — Docketing—Extension of Time — Agreement of Coun- , sel — Approval of Judge — Statutes.

In order for the appellant to have his axipeal determined by the Supreme Court as a matter of right, it is imperative that he docket it in the Court under the rule as it applies to his district, and no consent of the parties as to extended time to be given, in making up and settling the case, etc., and no approval thereof of the trial judge under the provisions of C. S., 643 can have additional force when by reason thereof the appeal has been docketed later than the time required by the rule.

MotioN for certiorari to have case brought up from Nash Superior Court and heard on appeal.

J. W. Bailey and O. B. Moss for plaintiffs, movants.

Stacy, O. J.

It appears from an inspection of the record now before the Court, that the plaintiffs instituted this action on 1 July, 1925, to enjoin the Board of Education of Nash County from consolidating certain school districts, and further to restrain the board of commissioners of said county from levying taxes in the proposed consolidated territory or districts. There was a preliminary restraining order issued in the cause, returnable before Judge M. Y. Barnhill at Rocky Mount on 10 July, 1925. Upon the hearing before Judge Barnhill the temporary restraining order was dissolved and the action dismissed, it appearing that injunctive relief was the primary and only remedy sought by. plaintiffs. To this judgment, the plaintiffs excepted and gave notice of appeal to the Supreme Court. By consent, plaintiffs were allowed sixty days within which to prepare and serve statement of case oh appeal, and the defendants were allowed thirty days thereafter to file exceptions or counter statement of case. This application for certiorari was made on 1 September, 1925, for the reason that “the *155case on appeal bas not been served or made up; and therefore tbe record is not in condition for bearing at tbis term of tbe Supreme Court.”

Under our settled rules of procedure, an appeal from a judgment rendered prior to tbe commencement of a term of tbe Supreme Court must be brought to the next succeeding term; and, to provide for a bearing in regular order, it is required that tbe same shall be docketed here seven days (14 after 1 January, 1926) before entering upon tbe call of tbe docket of tbe district to which it belongs, with tbe .proviso that appeals in civil cases from tbe First, Second, Third and Fourth Districts, tried between tbe first day of January and tbe first Monday in February, or between tbe first day of August and tbe fourth Monday in August, are not required to be docketed at tbe immediately succeeding term of tbis Court, though if docketed in time for bearing at said first term, tbe appeal will stand regularly for argument. Eule 5, Vol. 185, page 788, as amended, Vol. 189, page 843. In numerous decisions of tbe Court dealing directly with the subject, it bas been held that these rules governing appeals are mandatory and not directory. Walker v. Scott, 102 N. C., 490. Tbe only modification sanctioned by tbe decisions is that where, from lack of sufficient time or other cogent reason, tbe case is not ready for bearing, it is permissible for tbe appellant, within tbe time prescribed, to docket tbe record proper and move for certiorari, which motion may be allowed by tbe Court, in. its discretion, on sufficient showing made, but such writ is not one to which tbe moving party is entitled as a matter of right. S. v. Farmer, 188 N. C., 243. S. v. Johnson, 183 N. C., 730.

It is urged on behalf of movants that tbe writ should issue in tbe instant case, because tbe trial judge,' under authority of C. S., 643, as amended by chap. 97, Public Laws 1921, approved tbe agreement of counsel that tbe time for serving statement of case on appeal and exceptions thereto, or counter statement of case, should be extended, and that tbe time so extended bas not yet expired. True, tbe discretionary power to enlarge tbe time for preparing and serving statement of case on appeal and exceptions thereto, or counter statement of case, is lodged in tbe trial court by virtue of the statute above mentioned (S. v. Humphrey, 186 N. C., 533) ; but tbis gives him no more authority to abrogate tbe rules of tbe Supreme Court than litigants or counsel would have to impinge upon them by consent or agreement. Cooper v. Comrs., 184 N. C., 615.

In S. v. Butner, 185 N. C., 731, it was said: “It is out of tbe power of tbe judge or solicitor to dispense with tbe rule of tbis Court requiring such docketing at tbe time prescribed by tbe rules of tbis Court. While tbe Legislature can extend tbe time for settling a case on appeal, it cannot impinge upon tbe rules of tbis Court, Herndon v. Ins. *156 Co., 111 N. C., 384, specifying the time in wbicb an appeal must be docketed, unless tbe Court shall see fit to grant a certiorari, wbicb is a matter witbin its discretion.”

Again, in S. v. Dalton, 185 N. C., 606, it was said: “Tbe decisions of tbis Court have been uniform tbat on failure to docket tbe appeal in tbe time prescribed, it will be docketed and dismissed, unless a motion is made for certiorari at tbe next succeeding term and sufficient cause shown for tbe failure.” See, also, Byrd v. Southerland, 186 N. C., 385; Rose v. Rocky Mount, 184 N. C., 609; Mimms v. R. R., 183 N. C., 436, where tbe whole matter is discussed at considerable length, with full citation of authorities.

Tbe order of the judge, in so far as it is relied upon as authority for disregarding tbe rule requiring tbe appeal to be brought to tbe next succeeding term of tbe Supreme Court, can bave no greater weight than an agreement between counsel or litigants to tbis effect. Speaking to tbe force of such an agreement in S. v. Farmer, supra, Hoke, G. J., said: “It is insisted tbat by agreement between counsel for appellant and tbe solicitor, tbe time for preparing tbe case on appeal was extended beyond tbe opening of tbe fall session of tbis Court, and tbat as a matter of fact tbe solicitor of tbe district is still engaged in preparing tbe counter-case for tbe State on defendant’s appeal. But such a position cannot for a moment be allowed. These rules, prepared pursuant to tbe powers vested in tbis Court by tbe Constitution, and designed to promote tbe expeditious and orderly bearing of causes on appeal, are in no wise subject to tbe agreement of counsel. As held in Rose v. Rocky Mount, supra, neither parties litigant nor their attorneys bave authority by agreement among themselves to disregard them.”

Recurring 'to tbe facts, appearing on tbe record, we are of opinion tbat no sufficient cause has been shown for appellants’ failure to prosecute tbe appeal and to bave tbe same here at tbe next succeeding term of tbe Court as required by tbe rules. As already stated, tbe action is to enjoin tbe defendant, board of education, from consolidating certain school districts, and to restrain tbe county board of commissioners from levying taxes to carry on tbe schools in said consolidated districts. Tbe matter was beard before Judge Barnhill, 10 July, 1925, on tbe pleadings, affidavits and oral testimony of one witness. Tbe judge found tbe facts and embodied them in bis judgment. The record is not large. Tbe case is one in wbicb tbe public has an interest. Tbe only reason assigned for appellants’ failure to bave tbe appeal ready for hearing at tbe present term of Court is tbat, by consent of tbe parties, approved by thé judge, tbe time for settling tbe case was extended. Tbe showing thus made is not sufficient to warrant tbe issuance of a certiorari.

Motion denied.