# Abell v. Thornton Light & Power Co.

> Supreme Court of North Carolina · May 8, 1912 · 159 N.C. 348

URL: https://www.frixlaw.com/law-library/cases/9809198

## Case

- **Full name:** Louis R. Abell v. Thornton Light and Power Company.
- **Court:** Supreme Court of North Carolina
- **Decided:** May 8, 1912
- **Citations:** 159 N.C. 348; 74 S.E. 881; 1912 N.C. LEXIS 281
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Walker
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9809198

## Opinion text

*351 Brown, J.,
dissenting: I differ with my brethren in the conclusion that the defendant, appellant, has been1 guilty of any laches by which he has forfeited the right to have his appeal docketed in the Superior Court of Catawba County and tried de novo.
The cause was tried by a justice of the peace on 16 May, 1911. The defendant appealed to the Superior Court. On 7 July, 1911, the defendant’s attorney, having duly appealed in open court and given notice of appeal, paid the justice of the peace his fee of 30 cents for sending up the transcript of appeal. The justice of the peace, on 7 July, 1911, made his return to the notice of appeal, and delivered the transcript to the clerk of the Superior Court.
It is admitted that the said transcript was in the clerk’s hands on the said date, and that by inadvertence he failed to place it upon the trial docket, or calendar, in time to be heard at the court which convened on the 10th day of July.
I do not think that this case is governed by the rule laid down in Peltz v. Bailey, 157 N. C., 166 . In this case the defendant could not properly apply for recordm'i at the July term of Catawba Superior Court for the reason that the justice of the peace had already filed the record and transcript with the clerk of the court, and the defendant had a right to suppose that the clerk had discharged his duty and entered it upon the trial calendar.
I am of opinion that when the appellant discharges every . duty required of him by law, and causes the transcript of the appeal to be delivered to the clerk of the Superior Court, and pays all of the legal fees, that the appeal is to all intents and purposes then and there docketed in contemplation of law, and the court will not permit a litigant to be prejudiced by the inadvertence of the clerk in failing to place the appeal upon the trial calendar.
It is found as a fact that if the appeal had been placed upon the trial calendar at the July Term, 1911, it could not have been tried on account of the crowded condition of the docket, and that it could not have been reached for a hearing at that term,
*352 Tbe defendant was, therefore, excusable in not examining the trial calendar to see if bis appeal bad been placed upon it, for he bad a right to suppose that the clerk had performed his duty in all respects.
I think that the disposition of this case is directly antagonistic to the decision of this Court in Johnson v. Andrews, 132 N. C., 377 , in which it is held that where an.appellant pays the fees for the return and docketing of an appeal from a justice of the peace the appeal will not be dismissed for the failure of. the clerk of the Superior Court to docket the same.
In that ease Mr. Justice Walker well says: “It appears that the counsel for the defendant did everything that the law requires of him or his client. He caused the return to the notice of appeal to be made by the justice, and paid the. fee therefor within the time fixed by law. The return was immediately filed with the clerk. His fee for docketing the appeal was paid, and he was requested to docket it. What more could counsel have done, or was he required to do, in order to protect the interests of his client and save his right to have the case heard de novo in the Superior Court? When he caused the return to be filed with the clerk, and paid the fee for docketihg, it became the duty of the clerk to docket the appeal, and surely the law will not permit the defendant to be prejudiced or deprived of his right to have a trial in the Superior Court by any fault or neglect of the clerk, when the counsel has been vigilant at every stage of the case up to the very point where his duty ended and that of the clerk began.”
I know of no precedent or statute which requires the defendant in this case to examine the trial calendar or docket at the July term to ascertain if the clerk had done his duty and docketed the appeal there.
The defendant had a right to suppose that the clerk had discharged his duty, and that if the case was reached upon the call of the docket, it would be tried in its order. I do not think a technicality like the one insisted on in this case should be permitted to defeat the purposes of justice.
While the facts of this case are nearly but not exactly identical with Johnson v. Andrews, it is apparent that the principle *353 of practice stated by Justice Walker is broad enough to cover this ease to tbe extent that tbe attorney or Ms client should not be held responsible for the oversight of the clerk.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9809198. Public record. Not legal advice.