{ "id": 8613956, "name": "G. M. WOMBLE et al. v. MONCURE MILL AND GIN COMPANY and H. V. WICKER, Respondent, Appellant", "name_abbreviation": "Womble v. Moncure Mill & Gin Co.", "decision_date": "1927-11-23", "docket_number": "", "first_page": "577", "last_page": "580", "citations": [ { "type": "official", "cite": "194 N.C. 577" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "123 S. E.. 258", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "188 N. C.. 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653309 ], "opinion_index": 0, "case_paths": [ "/nc/188/0116-01" ] }, { "cite": "113 S. E., 569", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "184 N. C., 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271649 ], "opinion_index": 0, "case_paths": [ "/nc/184/0615-01" ] }, { "cite": "45 S. E., 353", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "133 N. C., 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656097 ], "opinion_index": 0, "case_paths": [ "/nc/133/0025-01" ] }, { "cite": "130 S. E., 616", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N. C., 775", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614381 ], "opinion_index": 0, "case_paths": [ "/nc/190/0775-01" ] }, { "cite": "124 S. E., 562", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "188 N. C., 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653592 ], "opinion_index": 0, "case_paths": [ "/nc/188/0243-01" ] }, { "cite": "129 S. E., 195", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N. C., 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597060 ], "opinion_index": 0, "case_paths": [ "/nc/190/0154-01" ] }, { "cite": "131 S. E., 637", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "191 N. C., 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628738 ], "opinion_index": 0, "case_paths": [ "/nc/191/0263-01" ] }, { "cite": "193 N. C., 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217709 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/193/0354-01" ] } ], "analysis": { "cardinality": 473, "char_count": 7820, "ocr_confidence": 0.482, "pagerank": { "raw": 2.867051611503403e-07, "percentile": 0.8425199693109521 }, "sha256": "35e7b9aa6b739631cde2ea07043a39f6ed46d645bc605db4732a5bfe2dc583f2", "simhash": "1:464dee777e4705b9", "word_count": 1412 }, "last_updated": "2023-07-14T17:26:29.544042+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "G. M. WOMBLE et al. v. MONCURE MILL AND GIN COMPANY and H. V. WICKER, Respondent, Appellant." ], "opinions": [ { "text": "Stagy, 0. J.\nIn tbis cause pending in tbe Superior Court of Chat-ham County, tbe receiver of tbe Moncure Mill and Gin Company lodged a motion before tbe judge of tbe Superior Court, bolding tbe courts of tbe Fourth Judicial District, to have H. Y. Wicker attached for contempt, in that, it is alleged, the respondent unlawfully and wil-fully removed certain lumber from the possession of the receiver, scienter, and wrongfully converted same, or the proceeds derived from a sale thereof, to his own use.\nJudgment was entered 29 June, 1927, in which the facts are fully set out, the respondent adjudged to be guilty of contempt and required to pay a fine of $5.00 and the costs, and to surrender to the receiver the lumber in question or the proceeds derived from a sale thereof, in default of which, it is ordered that he be committed to the common jail of Chatham County. On 7 July, thereafter, the respondent gave notice of appeal from this judgment to the Supreme Court.\nIt is alleged that respondent\u2019s statement of case on appeal was served 31 August and exceptions filed thereto about 10 September, \u201cwhich were immediately transmitted to the trial judge with request that he set a time and place for settling case on appeal.\u201d The respondent\u2019s application for certiorari was allowed 14 September, and the case set for argument at the end of the call of the docket from the Thirteenth District. No return having been made to this writ, because the ease had not yet been settled, the respondent moved for an alias certiorari on 8 November, 1927. Consideration of this motion was continued ex mero motu until 15 November so that movant might have an opportunity to show merit, if any he had, by filing a detailed statement of the facts upon which the motion was based. Consideration .of the motion was again continued ex mero motu until 17 November for further information. In a letter written to the clerk 16 November it is stated- that \u201cthe above case was sent to the judge on 2 September,\u201d with request that he fix date for settling same on appeal, etc.\nAssuming that the date, \u201c2 September,\u201d stated in this letter, is erroneous, as it is at variance with the dates previously mentioned, still .we are face to face with the fact that the respondent had failed to show any sufficient cause entitling him to a writ of certiorari.\nIn the first place the judgment sought to be reviewed is one as for contempt; the facts are found by the court and set out in detail; there is nothing to suggest the necessity of any unusual time in preparing the case on appeal. In the next place, it does not appear that the case should have gone to the judge for settlement at all. It was the duty of the appellant, under O. S., 643, to see that a copy of his statement of case on appeal was \u201cserved on the respondent within fifteen days from the entry of the appeal taken.\u201d This was not done. The statute further provides that \u201cwithin ten days after such service the respondent shall return the copy with his approval or specific amendments endorsed or attached.\u201d This was not done. It is also provided that, \u201cif the case be approved by the respondent, it shall be filed with the clerk as a part of the record; if not returned with objections within the time provided, it shall he deemed approved.\u201d True, it is stated that the order, adjudging the respondent in contempt, \u201cwas finally heard and disposed of at Ealeigh on 27 August, 1927.\u201d But this is at variance with the record, or else the whole of the record proper is not before us. Notice of appeal from the judgment of 29 June was filed in the office of the clerk of the Superior Court for Chatham County 7 July, 1927, and there is no suggestion of any extension of time, by agreement or otherwise, for preparing and serving statement of case on appeal.\nCertiorari is a discretionary writ, to be issued only for good or sufficient cause shown, and it is not one to which the moving party is entitled as a matter of right. Waller v. Dudley, 193 N. C., 354; Trust Co. v. Parks, 191 N. C., 263, 131 S. E., 637; Finch v. Comrs., 190 N. C., 154, 129 S. E., 195; S. v. Farmer, 188 N. C., 243, 124 S. E., 562. A party is entitled to a writ of Certiorari when \u2014 and only when \u2014 the failure to perfect the appeal is due to some error or act of the court or its officers, and not to any fault or neglect of the party or his agent. Trust Co. v. Parks, supra; Bark v. Miller, 190 N. C., 775, 130 S. E., 616.\nThe rules governing appeals are mandatory and not directory. Calvert v. Carstarphen, 133 N. C., 25, 45 S. E., 353. They may not be abrogated or set at naught: (1) by act of the Legislature (Cooper v. Comrs., 184 N. C., 615, 113 S. E., 569) ; (2) by order of the judge of the Superior Court (Waller v. Dudley, supra), or (3) by consent of litigants or counsel (S. v. Farmer, supra). The Court has not only found it necessary to adopt them, but equally imperative to enforce them and to enforce them uniformly.\nFor the convenience of counsel, litigants and the Court, a fixed schedule is arranged for each term of the Court and a time set apart for the call of the docket from each of the judicial districts of the State. The calls are made in the order in which the districts are numbered. It can readily be seen, therefore, that, unless appeals are ready for argument at the time allotted to the district from which they come, a disarrangement of the calendar necessarily follows, and this often results in delay and not infrequently in serious inconvenience. The work of the Court is constantly increasing and, if it is to keep up with its docket, as it is earnestly striving to do, an orderly procedure, marked by a due observance of the rules, must be maintained. Battle v. Mercer, 188 N. C.. 116. 123 S. E.. 258.\nThe present application for certiorari presents a striking illustration of the necessity and wisdom of adhering to the established rules of practice. More time has already been consumed in considering the motions, filed herein, than the case itself would have required. The appellant is not entitled to the writ on the showing made.\nCertiorari disallowed.", "type": "majority", "author": "Stagy, 0. J." } ], "attorneys": [ "F. L. Gavin and Seawell & McPherson for respondent, movant." ], "corrections": "", "head_matter": "G. M. WOMBLE et al. v. MONCURE MILL AND GIN COMPANY and H. V. WICKER, Respondent, Appellant.\n(Filed 23 November, 1927.)\n1. Certiorari \u2014 Appeal and Error \u2014 Courts\u2014Discretion\u2014Fault of Movant.\nIt is within the discretion of the Supreme Court to allow the issuance of the writ of certiorari to bring up a case before it for review and only for good or sufficient cause, as where the failure to perfect the appeal is due to some error or act of the court or its officers, and not to any fault or neglect of the movant or his agents.\n2. Courts \u2014 Rules of Court \u2014 Enforcement\u2014Appeal and Error.\nThe rules of the Supreme Court regulating appeals are mandatory and for equal enforcement as necessary to the more prompt and careful consideration and decision of the cases appealed from, and the due and orderly consideration of appeals may not be interfered with by the Superior Courts, the Legislature, or others.\n3. Courts \u2014 Rules of Court \u2014 Statutes\u2014Certiorari\u2014Appieal and Error.\nThe appellant from an order of the - Superior Court finding him guilty as for contempt of court, and who moves for certiorari in the Supreme Court, shows no legal excuse for the failure of the judge to have settled the case under due and orderly procedure, when the judgment fully and in an orderly manner sets forth the necessary facts upon which it was based; the appellant has taken an unusual time in preparing and serving his case, and he has not complied with C. S., 643, with respect to the service of the case, and in other respects as required by the rules of court.\nMotion by H. Y. Wicker for alias certiorari to bave case brought up from ChathaM and beard on appeal.\nF. L. Gavin and Seawell & McPherson for respondent, movant." }, "file_name": "0577-01", "first_page_order": 645, "last_page_order": 648 }