Hygienic Plate Ice Mfg. Co. v. Raleigh & A. Air-Line R. Co.
| Decision Date | 10 October 1899 |
| Citation | 34 S.E. 100,125 N.C. 17 |
| Parties | HYGIENIC PLATE ICE MFG. CO. v. RALEIGH & A. AIR-LINE R. CO. |
| Court | North Carolina Supreme Court |
Petition of Hygienic Plate Ice Manufacturing Company for a writ of certiorari. Granted.
An application for certiorari stating that petitioner's counsel failed to prepare the case on appeal within the time allowed; that the delay was caused by illness of two of the counsel for petitioner and the appointment to an important office of the third; that the court refused to hear the appeal; that all of petitioner's counsel are insolvent and that petitioner is without other remedy,--is sufficient to warrant the issuing of the writ.
MacRae & Day, J. D. Shaw, J. B. Batchelor, S. H. MacRae, and W. H Neal, for petitioner.
Armistead Jones, F. H. Busbee, Ernest Haywood, and Simmons, Pou & Ward for defendant.
On the 12th day of October, 1894, plaintiff commenced an action against defendant in the superior court of Wake county, in which it alleged that the defendant wrongfully and negligently burned its ice factory in the city of Raleigh. The defendant denied these allegations, and alleged contributory negligence on the part of plaintiff. This action was tried at April term, 1899, of said court, when the plaintiff recovered and obtained judgment for $20,000. From this judgment the defendant appealed, notice of appeal was waived in open court, and appeal bond fixed at $50, which was given by defendant; and the defendant also gave a supersedeas bond for the stay of execution until the appeal should be heard in the supreme court. By consent of parties, 40 days were given to the appellant to make up the case on appeal, and 30 days for appellee to except or make up counter case. The time allowed expired on June 15th, and defendant's case on appeal was not served or tendered until the 19th,--four days after the time allowed by the agreement had expired. The plaintiff refused to accept service of defendant's case on appeal, for the reason that it had not been tendered within the time agreed upon; and, while plaintiff made out a counter case, it insisted on its objection as to time, and objected to the judge who presided at the trial settling the case on appeal. The defendant, after notice to plaintiff, applied to the judge to settle the case on appeal. But plaintiff attended, and there objected to the judge's settling the case, for the reason that defendant's case on appeal had not been tendered or served in time; and upon this state of facts the judge held that he had no power to settle the case on appeal, and declined to do so, stating that he had his notes of the trial, and could settle the case in a very short time, if he had the power, and that he would do so. At the opening of the present term of this court, and upon notice to the plaintiff, the defendant filed its petition asking for a writ of certiorari, sworn to by Mr. St. John, vice president of defendant company, and the affidavits of J. C. MacRae and W. H. Day were also filed in support of said petition. It appears from the petition that the defendant employed J. B. Batchelor, W. H. Day, and J. C. MacRae, three reputable lawyers of good standing, residents of the city of Raleigh, and practicing attorneys of the Raleigh bar, to attend to and manage said action for it; that the defendant caused the appeal to be taken, and that it gave the appeal bond required by law, as fixed by the court; that it also gave a supersedeas bond for the stay of execution; that this was all done in good faith, as it was advised that defendant had faith, ground for said appeal, upon which it excepted to obtain a new trial, and that it never abandoned, or thought of abandoning, its appeal; that all three of said attorneys are insolvent, and that defendant is without remedy or redress, except by the intervention of this court and the issuance of the writ of certiorari, as prayed in the petition. The attorneys Day and MacRae admit that they are insolvent, and it is not disputed by plaintiff or any one that the attorney Batchelor is also insolvent. The said MacRae states in his affidavit that it was agreed between the attorneys that he should prepare, and serve the case on appeal; that, on account of his own bad health and sickness in his family, he was not able to do so within the time agreed upon. He also alleges that Mr. Batchelor was only consulting counsel, and that Mr. Day had been elected or appointed to an important public office, which took a large portion of his time. The plaintiff admits that Mr. MacRae was unwell a part of the time, and that he had sickness in his family, but alleges that he was in his law office the most of the time. The plaintiff also alleges that Mr. Batchelor was more than a mere consulting counsel; that he took an active part in the trial of the case, examined some of the witnesses, and argued the case to the jury. Plaintiff admits that Mr. Day has been appointed to an important public office, but it alleges that he continued his practice as an attorney, and that it was the duty of both Batchelor and Day to make up the case on appeal if MacRae could not do so.
This is a substantial statement of the facts in the case, and, if the precedents of this court and the decisions of other courts do not intervene to prevent our doing so, we are of the opinion that the writ should issue. The writ of certiorari is a remedial writ, and should be issued in proper cases, where the petitioner has lost his remedy without fault or neglect on his part, and where he is without any other remedy. But it is an extraordinary writ, to be granted or not, in the sound discretion of the court, and will not be granted for the relief of a party who is by his own negligence in default,--where he has lost his remedy by his own laches or negligence. Negligence is admitted, but the defendant says that it was not its negligence, but that of its attorneys; that it took the appeal and gave the bond; that this was all it could do; and that it could not make out the case on appeal; that this was the business of its attorneys, the only parties who could do so; and that it had every reason to believe, and did believe, that they would do so. If this is so, the question presented is this: Will the negligence of defendant's attorneys be charged to defendant, and prevent the issuance of the writ, or will the writ issue, notwithstanding the negligence of its attorneys?
The plaintiff contends that it was the duty of the defendant to serve the case on appeal after it had been prepared by its attorneys, and that it was guilty of negligence in not doing so. We do not assent to the truth of this proposition. If the case had been made out in time, and given to the...
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