The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-10-11

attorneys had prepared the case or that
he Was guilty of negligence in not
doing so, it being the practice for coun-
sci to serve the case on appeal. TAX
ing mp the authorities cited by plaintiff
to justify a refusal to issue the writ the
court holds that Dunn V. Underwood,
Stanback V. Harris, Griffin VS.. Nelson,
Winborne V. Bird, Churchill V. Insur-
ance Company and Boyer V. Garner do
not apply for one reason or another. In
Chadbourn V. Johnson the writ was re-
fused because counsel was solvent and
able to answer in damages for his neg
lect. The court says: 1T has been
held with very great uniformity under
Section pa of the Code that a party
not in fault, not guilty of laches himself.
is entitled to relief against the neglect
Of his attorney. Grill V. Vernon 90 n.
c.. 76, Bradford v. Gait, II \. c., r.
Replying to the charge that to grant
the writ would establish a dangerous
precedent the court says: 1T is argued
that if we grant the writ prayed for in
this case it will establish dangerous
precedent, that it will in effect, destroy
the statutory limitation for making and
serving cases on appeal and that the
court will be continually annoyed by
such applications. We do not think so;
the statute prescribes the legal limit and
the matter ends there unless this court,
in the exercise of a sound judicial dis
cretion issues its remedial writ Of GER
tiorali. And no attorney who expects
to hold his practice can afford to be
guilty of such laches without some very
good excuse. Especially so when he
has to allege or have it proved, that
he is insolvent before his client can OBJ
tain such relief
1T seems to us, speaking in the lam
guage of Chief Justice Kent, that to
refuse the writ in this case the defend
ant is undone.' The writ will issue to
the clerk of Wake county commanding
him to notify Judge Brown that it is
the Judgment of this court that ne pro-
coed to settle the case on appeal at
once that the same may be
proceeded with according to law and
the practice Of this court.
Let the writ issue rs prayed for"
The attorneys in the case are: Mae
Rae and Day, J. ID. Shaw, ]. b. Batche-
Tor, $. III. MacRae and w. III. Neal for
petitioner; Armistead Jones. +. III. Bus
bee, Ernest Haywood and Simmons,
Pou and Ward, contra.
OTHER CASES.
Cases from Third district were argued
as follows on yesterday:
State VS.. Brown, by Attorney General
for State.
State VS.. Phelps; by Attorney Gene
raj for State, and Jarvis for defend
ant.
Benton VS.. Collins: by C. NJ. Cooke
for plaintiff, II. S. Spruill for defend
ant.
Rollins VS.. Neal, two cases; by II.
s. Spill for plaintiff, Shepherd and Bus
bee aud Jacob Battle for defendant.
Pope VS.. Whitehead by T. T. Thorne,
by brief, for plaintiff, +. S. Spruill for
defendant
Cases from Fourth district will be
called ON Tuesday, October 18th, as fol-
lows:
State vs.. Seagroves.
State VS.. Fagg.
State VS. Smith.
State VS.. White.
Fleming vs. Stewart.
Shell VS.. Hodges.
WE'LL VS.. Casey.
Finlayson VS.. Kirby.
Adams VS.. Battle.
Abbott vs.. Beddingfeld.
Yass VS.. Mcdonald.
Arendell VS.. Worth.
r. & A. Il. II. Co. VS.. A. & w. Il. r.
II. Co.
Opinions were handed down as fol-
lows:
White VS.. Underwood, from Hartford;
reversed.
Hines VS.. Moye, from Craven; affirm
ed.
Nichols VS.. Edenton, from Chowan:
affirmed.
Wright VS.. Railroad, from Northamp-
ton; new trial.
Moore VS.. Brady, from Northampton:
new trial.
Holloman VS.. Holloman, from BERTHE;
reversed.
Ice Co. VS.. Railroad, from Wake; pc
tition for certiorari allowed.
Johnosn VS.. Railroad, from Halifax;
dismissed for failure to bring up and
print material parts of record
Deloateh VS.. Cumnock Co, from
Northanpton per curtain, affirmed.
Terry VS.. Railroad, from Berthe; per
curtain. affirmed. This case is governed
by Culbreth vs. Downing, 121 n G. 205
and Maroon VS.. Railroad, 122 n. G. S61.