Womble v. Moncure Mill & Gin Co.

• Decision Date: 23 November 1927
• Docket Number: 108.
• Parties: WOMBLE et al. v. MONCURE MILL & GIN CO. et al.
• Court: North Carolina Supreme Court

140 S.E. 230

194 N.C. 577

WOMBLE et al. v. MONCURE MILL & GIN CO. et al.

No. 108.

Supreme Court of North Carolina

November 23, 1927

Proceeding by G. M. Womble and others against the Moncure Mill & Gin Company and H. V. Wicker. At the instance of the receiver of the Moncure Mill & Gin Company, H. V. Wicker was adjudged guilty of contempt. He gave notice of appeal, and moves for alias certiorari to have case brought up and heard on appeal. Certiorari disallowed.

E. L Gavin and Seawell & McPherson, all of Sanford, for respondent, movant.

STACY C.J.

In this cause pending in the superior court of Chatham county the receiver of the Moncure Mill & Gin Company lodged a motion before the judge of the superior court, holding the courts of the Fourth judicial district, to have H. V. Wicker attached for contempt, in that, it is alleged, the respondent unlawfully and willfully 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.

Judgment was entered June 29, 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 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 July 7th thereafter the respondent gave notice of appeal from this judgment to the Supreme Court.

It is alleged that respondent's statement of case on appeal was served August 31st, and exceptions filed thereto about September 10th, "which were immediately transmitted to the trial judge with request that he set a time and place for settling case on appeal." The respondent's application for certiorari was allowed September 14th, 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 case had not yet been settled the respondent moved for an alias certiorari on November 8, 1927. Consideration of this motion was continued ex mero motu until November 15th, 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 November 17th for further information. In a letter written to the clerk, November 16th, it is stated that "the above case was sent to the judge on September 2d," with request that he fix date for settling same on appeal, etc.

Assuming that the date "September 2d," 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 has failed to show any sufficient cause, entitling him to a writ of certiorari.

In 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 C. S. § 643, to see that a copy of his statement of case on appeal was "served on the respondent within fifteen days from the entry of the appeal taken." This was not done. The statute further provides that:

"Within ten days after such service the respondent shall return the copy with his approval or specific amendments indorsed or attached."

This was not done. It is also provided that:

"If 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 prescribed, it shall be deemed approved."

True it is...