Barras v. Wilmington & W.R. Co.

• Decision Date: 09 November 1897
• Citation: 28 S.E. 187,121 N.C. 504
• Parties: BARRAS v. WILMINGTON & W. R. CO.
• Court: North Carolina Supreme Court

28 S.E. 187

121 N.C. 504

BARRAS v. WILMINGTON & W. R. CO.

Supreme Court of North Carolina

November 9, 1897

Appeal from superior court, Lenoir county; McIver, Judge.

Action by D. S. Barras against the Wilmington & Weldon Railroad Company. From a judgment for defendant, plaintiff appeals. Appellee moves to dismiss because case on appeal was not served in time, and to affirm for want of a case. Affirmed.

The fact that the case on appeal was not legally settled does not entitle the appellee to have the appeal dismissed, but the judgment must be affirmed, where no error appears on the face of the record proper.

W. R. Allen, for appellant.

R. O. Burton, for appellee.

CLARK, J.

It was competent for counsel who accepted service of the case on appeal, after the time limited by statute, to add to his indorsement the date, and that he did not waive the objection that the case was presented too late. Such indorsement was properly certified by the clerk as a part of the proceedings in the case. Cummings v. Hoffman, 113 N.C. 267, 18 S.E. 170. The failure to serve the case on appeal within the time fixed by law was not cured by the judge's settling the case on appeal. Forte v. Boone, 114 N.C. 176, 19 S.E. 632; McNeill v. Railroad, 117 N.C. 642, 23 S.E. 268. If there had been no indorsement as above, and the appellee had filed an affidavit that service had not been in time, it might have been necessary to have the facts as to the date of service found by the judge below, unless the judge should find them in settling the case, as he should always do if there is a controversy on that point. Walker v. Scott, 102 N.C. 487, 9 S.E. 488; Cummings v. Hoffman, supra. But here there is no real contention that the case on appeal was served in time. Certainly no affidavit is offered to contradict the indorsement of the date of acceptance of service made on the plaintiff's case on appeal by the appellee's counsel. There being no case on appeal legally settled does not entitle the appellee to have the appeal dismissed, but, as no error appears upon the face of the record proper, the judgment must be affirmed. Delafield v. Construction Co., 115 N.C. 21, 20 S.E. 167.

Affirmed.