Short v. Sparrow

• Decision Date: 21 May 1887
• Citation: 2 S.E. 233,96 N.C. 348
• Court: North Carolina Supreme Court
• Parties: SHORT v. SPARROW and Wife.

96 N.C. 348

2 S.E. 233

SHORT

v.SPARROW and Wife.

Supreme Court of North Carolina.

May 21, 1887.

Petition of defendants for writ of certiorari to superior court, Beaufort county, as a substitute for an appeal.

Plaintiff not represented.

D. G. Fowle, for defendants.

DAVIS, J.

This action is pending in the superior court of Beaufort county, the object of it being the foreclosure of a mortgage executed by the defendants, Sparrow and wife, and the sale of the property embraced in said mortgage to pay the debt secured thereby. It is alleged by the plaintiff that the defendants, Sparrow and wife, and insolvent; that the property included in the mortgage is not equal in value to the debt and interest secured thereby; that interest has not been paid since June, 1885, not have the taxes been paid by the defendants. Upon a motion made in the cause for the appointment of a receiver, and continued and heard at chambers before SHIPP, J., on the fifteenth of December, 1886, upon affidavits and counter-affidavits, one Wilkins was appointed receiver to take charge of the property in controversy and rent it out, with the provision that “it is further ordered and adjudged that upon the defendants, Sparrow and wife, executing a good bond to the plaintiff in the sum of $200 to cover the rents of said property pending this suit, that they shall be allowed to remain in possession thereof.” From this order appointing a receiver the defendants appealed, and this entry was made: “Appeal prayed and granted. Notice of appeal waived. Bond at $50.” The appeal was not perfected, and this is a petition for a certiorari to have it brought up.

The defendant Sparrow files an affidavit setting out at length the reason of his failure to perfect the appeal in time, which is, in substance, that on account of his sickness he was not able to attend to the matter, and there was an understanding and agreement with plaintiff's attorney that the time would be waived, and no advantage taken of the delay, and the subsequent refusal of the plaintiff's attorney to “recognize said understanding and agreement.” To this affidavit counter-affidavits are filed, one by the plaintiff, in which he “denies absolutely that any further steps were taken by the defendant to perfect the said appeal,” after the entry of the grant of appeal and waiver of notice, or that there was any waiver, either by himself or his attorney, of the statutory requirements necessary to perfect the appeal....