#### AVERY PRUITT et al. v. NEAL WOOD et al.

(Filed 3 December, 1930.)

1. Appeal and Error O c — Where case is not docketed within time prescribed .the appeal will be dismissed.

Where the parties agree upon an extension of time for service of case on appeal that will not permit the docketing of the appeal in the Supreme Court in time to be heard according to the procedure in such instances, they knowingly put it beyond their power to comply with the mandatory provisions of Rule five of the procedure, and the ease will be dismissed in the Supreme Court when these requirements have not been complied with by the appellant.

2. Appeal and Error C e — Where case is not docketed within time prescribed appellant’s procedure is to move for certiorari.

Rule five of practice in the Supreme Court fixes the time in which appeals to the Supreme Court shall be docketed, and where the case is not docketed within the time prescribed the appellant, after docketing the record proper, should move for a *certiorari*upon the ground that the case could not be docketed in the time prescribed, but the granting of the writ is within the discretion of the court upon a proper showing and appellant is not entitled thereto as a matter of right.

8. Appeal and Error *D a*— Where case is not docketed within time and no certiorari is issued, lower court may adjudge appeal abandoned.

Where appellant has failed to docket the record on appeal and no writ of certiorari has been allowed in the Supreme Court, the court below may adjudge, upon proper notice, upon proof of such facts, that the appeal has been abandoned.

4. Appeal and Error C f — Where appeal is not prosecuted according to rules of Court it will be dismissed.

The mandatory requirements of the rules regulating appeals to the Supreme Court may not be disregarded or set at naught either by an act of the Legislature, or by order of a Superior Court judge, or by consent of litigants or counsel, the uniform enforcement of the rules being necessary for the courts to properly perform their duties. This matter is fully discussed by Staoy, C. J., giving a long line of unbroken decisions, and notice is given that hereafter cases not in conformance with the rules will be dismissed on the authority of this opinion without a discussion of their merits.

Appeal by plaintiffs from *Rardinq. J.,*at January Special Term, 1930, of WlLKES.

Civil action to restrain defendant from cutting timber, etc.

From a judgment dismissing *the*action for failure to file bond as required by order of court, tbe plaintiffs appeal, assigning errors.

*J. A. Rousseau and Charles*Or. *Gilreath for plaintiffs.*

*T. C. Bowie for defendants.*

*789Stagy, C. J.

From tbe judgment of dismissal entered at the January Special Term, 1930, Wilkes Superior Court, the plaintiffs gave notice of appeal to the Supreme Court, and were allowed ninety days to make out and serve statement of case on appeal, while the defendants were given sixty clays thereafter to prepare and file exceptions or counter-case. Upon disagreement, the case was settled by the judge, 16 July, 1930. There was no application for *certiorari*at the Spring Term, 1930, of this Court, the next succeeding term commencing after the rendition of the judgment in the Superior Court, the term to which the appeal should have been brought.

Eule 5 of the Eules of Practice in the Supreme Court (192 N. C., p. 841), provides, among other things, that the transcript of record on appeal from a judgment “rendered before the commencement of a term of this Court” must be brought to such term, the next succeeding term, and docketed here fourteen days before entering upon the call of the district to which the case belongs, with the proviso that appeals in civil cases (but otherwise in criminal cases) from the First, Second, Third and Fourth districts, tried between the first day of January and the first Monday in February, or between the first day of August and the fourth Monday in August, are not required to be docketed at the immediately succeeding term of this Court, though if docketed in time for hearing at said first term, the appeal will stand regularly for argument.

The single modification of this requirement, sanctioned by the decisions is, that where, from lack of sufficient time or other cogent reason, the case is not ready for hearing, it is permissible for the appellant, within the time prescribed, to docket the record proper and move for a *certiorari,*which motion may be allowed by the Court in its discretion, on sufficient showing made, but such writ is not one to which the moving party is entitled as a matter of right. The issuance of a writ of *certiorari,*however, does not change the time already fixed by agreement of the parties, or by order of court, for serving statement of case on appeal, and exceptions or counterease. *Smith v. Smith, ante,*463.

If the record and transcript are not docketed here at the proper time and no *certiorari*is allowed, the court below, on proof of such facts,' may, on proper notice, adjudge that the appeal has been abandoned, and proceed in the cause as if no appeal had been taken. *Dunbar v. Tobacco Growers,*190 N. C., 608, 130 S. E., 505; *Jordan v. Simmons,*175 N. C., p. 540, 95 S. E., 919; *Avery v. Pritchard,*93 N. C., 266.

We have held in a number of cases that the rules of this Court, governing appeals, are mandatory and not directory. *Calvert v. Carstarphen,*133 N. C., 25, 45 S. E., 353. They may not be disregarded or set at naught (1) by act of the Legislature *(Cooper v. Commissioners,*
      *790184 N. C., 615, 113 S. E., 569), (2) by order of the judge of the Superior Court *(Waller v. Dudley,*193 N. C., 354, 137 S. E., 149), (3) by consent of litigants or counsel. *S. v. Farmer,*188 N. C., 243, 124 S. E., 562. The Court bas not only found it necessary to adopt them, but equally necessary to enforce them and to enforce them uniformly. *Womble v. Gin Co.,*194 N. C., 577, 140 S. E., 230. See *Porter v. R. R.,*106 N. C., 478, 11 S. E., 515, for summary of the decisions.

For tbe convenience of litigants, counsel 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, which it is earnestly striving to do, an orderly procedure, marked by a due observance of the rules, must be maintained. When litigants resort to the judiciary for the settlement of their disputes, they are invoking a public agency, and they should not forget that rules of procedure are necessary, and must be observed, in order to enable the courts properly to discharge their duties. *Battle v. Mercer,*188 N. C., 116, 123 S. E., 258. The rules have been revised, annotated and republished in the 192nd Beport.

On facts identical in principle with those appearing on the present record, the appeal in the case of *Stone v. Ledbetter,*191 N. C., 777, 133 S. E., 162, was dismissed *ex m.ero moiu.*The present appeal will be treated in like fashion. The following authorities are also in support of this disposition of the case: *Pentuff v. Park,*195 N. C., 609, 143 S. E., 139; *S. v. Crowder,*195 N. C., 335, 142 S. E., 222; *S. v. Surety Co.,*192 N. C., 52, 133 S. E., 172; *Trust Co. v. Parks,*191 N. C., 263, 131 S. E., 637; *Finch v. Commissioners,*190 N. C., 154, 129 S. E., 195; *S. v. Butner,*185 N. C., 731, 117 S. E., 163; *Rose v. Rocky Mount,*184 N. C., 609, 113 S. E., 506; *S. v. Johnson,*183 N. C., 730, 110 S. E., 782; *S. v. Barksdale,*183 N. C., 785, 111 S. E., 711; *Buggy Co. v. McLamb,*182 N. C., 762, 108 S. E., 344; *S. v. Satterwhite,*182 N. C., 892, 109 S. E., 862; *Howard v. Speight,*180 N. C., 653, 105 S. E., 35; *S. v. Trull,*169 N. C., 363, 85 S. E., 133.

By requesting and consenting to such a long extension of time for settling case on appeal, the plaintiffs put it out of their power to have the case ready for hearing as required by the rules. This, they did at the peril of losing their right of appeal. *Trust Co. v. Parks, supra.*

*791We Lave recently been called npon to consider a number of procedural questions: *Reid v. Reid, ante,*740 (order vacated because signed by special judge out of county in which cause was pending) ; *Ellis v. Ellis, ante,*708 (dismissed for failure to file brief and to send up necessary parts of record proper) ; *Carter v. Bryant, ante,*704 (affirmed for failure to serve proper statement of ease on appeal); *Rasberry v. Ricks, ante,*702 (dismissed as moot); *Waters v. Waters, ante,*667 (dismissed for failure to send up necessary parts of record proper) ; *Smith v. Smith, ante,*463 (affirmed for failure to serve statement of case in time); *S. v. Hayeslipps, ante,*636; *S. v. Massey, ante,*601; *S. v. Harris, ante,*377; *S. v. Sharpe, ante,*377, and *S. v. Bynum, ante,*376 (all capital cases dismissed for failure to prosecute appeals); *Roberts v. Bus Co.,*198 N. C., 779 (order striking out statement of case on appeal because not served in time (one day late), affirmed) ; see, also, *Hardee v. Timberlake,*159 N. C., 552 (dismissed because case on appeal served two days late); and *Guano Co. v. Hicks,*120 N. C., 29 *(certiorari*denied because case on appeal served one day late); *Kerr v. Drake,*182 N. C., 764 (motion to reinstate denied because case on appeal not served in time); *Plott v. Construction Co.,*198 N. C., 782 (dismissed for failure to send up necessary parts of record proper); *R. R. v. Brunswick County,*198 N. C., 549 (dismissed because no entry of appeal appeared on record) ; see, also, *Mfg. Co. v. Simmons,*97 N. C., 89 (dismissed for failure to note entry of appeal); *Casey v. R. R.,*198 N. C., 432 (dismissed for failure to reduce evidence to narrative form) ; *Greene v. Stadiem,*197 N. C., 472 (dismissed because *coram non judice); Schwarberg v. Howard,*197 N. C., 126 (dismissed for failure to send up necessary parts of record proper) ; *Cecil v. Lumber Co.,*197 N. C., 81 (dismissed for failure to group exceptions and assignments of error) ; see, also, *Rawls v. Lupton,*193 N. C., 428, and *Byrd v. Sutherland,*186 N. C., 384, on assignments of error; *S. v. Beasley,*196 N. C., 797 (dismissed as a nullity); *Johnson v. Mills Co.,*196 N. C., 93 (dismissed as premature); *Abbitt v. Gregory,*196 N. C., 9 (dismissed as premature); *Covington v. Hosiery Mills,*195 N. C., 478 (dismissed for failure to file brief and inattention); *S. v. Taylor,*194 N. C., 738 (dismissed for failure to prosecute appeal); *S. v. Angel,*194 N. C., 715 *(certiorari*denied for want of meritorious showing — failure to show probable error — and appeal dismissed for laches); *S. v. Butner,*185 N. C., 731 *(certiorari*denied for failure to “allege error and assign meritorious grounds for the appeal”); *Womble v. Gin Co.,*194 N. C., 577 *(alias certiorari*denied for want of meritorious showing); *Bisanar v. Suttle-myre,*193 N. C., 711 (judgment vacated because signed out of the county and out of the district); *Dunn v. Taylor,*187 N. C., 385 (order *792stricken out because signed by judge after leaving bench); *Trust Co. v. Miller,*191 N. C., 787 (dismissed for failure to file requisite number of transcripts in pauper appeal); *S. v. Farmer,*188 N. C., 243 (dismissed for failure to bring appeal to next succeeding term of Supreme Court); T*ripp v. Somersett,*182 N. C., 767 (dismissed for failure to bring appeal to next succeeding term); *Ross P. Robinson,*185 N. C., 548 (dismissed as frivolous); *Hotel Co. v. Griffin,*182 N. C., 539 (dismissed as frivolous); *S. v. McDraughon,*168 N. C., 131 (dismissed for failure to send up indictment, or to supply copy of lost bill); *Cressler v. Asheville,*138 N. C., 482 *(certiorari*denied and judgment affirmed because stenographer’s notes sent up as “case on appeal”); *Sigman v. R. R.,*135 N. C., 181 (no error found after referring transcript to clerk “to put the record in prescribed shape”); *Burrell v. Hughes,*120 N. C., 277 (dismissed for failure to bring appeal to next succeeding term, the Court stating in the opinion that “There are *some*matters at least which should be deemed settled, and this is one of them”) ; *S. v. May,*118 N. C., 1204 (dismissed because organization of court not shown in transcript); *S. v. Smith,*152 N. C., 842 (dismissed for failure to aver in affidavit that application to appeal *in forma pauperis*in criminal action “is in good faith”); *Honeycutt v. Watkins,*151 N. C., 652 (dismissed on ground of defective affidavit to appeal m *forma pauperis*in civil action); *S. v. Keebler,*145 N. C., 560 (dismissed because defendant had escaped and fled the jurisdiction); *Bowen v. Fox,*99 N. C., 127 (dismissed for failure to give necessary undertaking on appeal); *S. v. Wagner,*91 N. C., 521 (dismissed for failure of surety on appeal bond to justify); *S. v. Butts,*91 N. C., 524 *(certiorari*issued to ascertain whether “court was held by judge authorized to hold it, and at the place and time prescribed by law”); *Burton v. Realty Co.,*188 N. C., 473 (controversy without action dismissed because no real “question in difference”); *Grundy v. Gulley,*120 N. C., 176 (controversy without action dismissed for failure to accompany agreed statement of facts with necessary affidavit).

*We*are minded to say, that hereafter, in disposing of appeals for failure to comply with the rules, the Court shall not feel impelled to state the reasons for its decisions, or to file written opinions in such cases. Hence, when a case is dismissed on authority of *Pruitt v. Wood*(this case), the profession will understand that it is for a failure in some respect to comply with the rules, whether specifically mentioned herein or not, and that the Court cannot pause to discuss the procedural question, but must conserve its time for the consideration of other matters.

Appeal dismissed.