American Floor Mach. Co. v. Dixon
| Decision Date | 19 December 1963 |
| Docket Number | No. 674,674 |
| Citation | 260 N.C. 732,133 S.E.2d 659 |
| Parties | AMERICAN FLOOR MACHINE CO., a corporation, v. Joseph T. DIXON, t/a Dixon Flooring Company. |
| Court | North Carolina Supreme Court |
Wade H. Penny, Jr., Henry Bane, Durham, for plaintiff appellant.
C. Horton Poe, Jr., Durham, for defendant appellee.
The plaintiff presents two assignments of error:
The Durham County Civil Court appears to have been established under Article 35, Chapter 7, General Statutes. Its jurisdiction--civil only--is concurrent (1) with that of justices of the peace, (2) with the Superior Court in all cases wherein the amount demanded, exclusive of interest, does not exceed $1,500.00. The court shall be open for business whenever matters before the court require attention, 'except for the trial of issues of fact requiring a jury and the trial of contested causes wherein the county civil court is exercising jurisdiction concurrent with the Superior Court, which shall be heard in term.' The judge is authorized to fix terms after consulting with the clerk and members of the county bar. The record does not disclose what has been done with respect to terms. 'Appeals may be taken from the county civil court within ten days * * * to the superior court * * * for errors assigned in matters of law or legal inference, in the same manner as is provided for appeals from the superior court to the Supreme Court, except (1) The appellant shall cause a copy of the statement of case on appeal to be served on the respondent within thirty days from the entry of the appeal taken, and the respondent, within fifteen days after such service, shall return the copy with his approval or specific amendments endorsed or attached; 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: Provided, that the judge trying the case shall have the power, in the exercise of his discretion, to enlarge the time in which to serve statement of case on appeal and exceptions thereto or counter statement of case.' (emphasis added)
The plaintiff invoked the jurisdiction of the Durham County Civil Court to force collection of a claim of $296.90. At the time summons was issued it applied for and was granted time to file its complaint. After jury trial it was determined that it was indebted to the defendant in the sum of $437.08. At the time it gave notice of appeal to the Superior Court it induced the judge of the county civil court to exercise his discretion in doubling the time fixed by the statute for serving the case on appeal. Thereafter, on the plaintiff's motion, the court granted two additional extensions.--To each of these extensions the defendant excepted. Finally the case on appeal was served on defendant's counsel on the day after the last extension expired.
The rules governing appeals from the county civil to the superior court conform as near as may be to those governing appeals from the superior to the Supreme Court. It seems, therefore, the judge of the county court had authority, in his discretion, to extend the time to serve the case on appeal in the first instance. The extension could only be for a reasonable time. We do not say in doubling the statutory period he exceeded his discretionary authority. But in passing on the question and fixing the time at 60 days within which the appeal should be served, he was thereafter without authority to do...
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In re B.B.
...upon the judgment appealed from, or upon the matter embraced therein." N.C.G.S. § 1-294 (2021) ; see also Am. Floor Mach. Co. v. Dixon , 260 N.C. 732, 735, 133 S.E.2d 659 (1963) ("As a general rule, an appeal takes a case out of the jurisdiction of the trial court."). However, "[w]hen a spe......
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State v. Atkinson, 22
...one extension, he may not grant another after the expiration of the term at which the judgment was entered. American Floor Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659. Normally, the effect of failure to serve the appellant's statement of the case on appeal within the time fixed by th......
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Estrada v. Jaques
...functus officio. Wiggins v. Bunch, 280 N.C. 106, 184 S.E.2d 879 (1971), reh'g denied, 281 N.C. 317 (1972); American Floor Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659 (1963). The enactment of N.C.Gen.Stat. § 1A-1, Rules 59 and 60 (1983) did not change this rule. Wiggins. It is subject......
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Matter of C.N.C.B.
...it in the appellate court[.]" Parrish v. Cole, 38 N.C.App. 691, 693, 248 S.E.2d 878, 879 (1978) (citing American Floor Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659 (1963)). In the instant case, we hold that we must vacate the corrected order for the following reasons. We stress that n......