Caldwell Land & Lumber Co v. Chester Et Ux
| Decision Date | 08 December 1915 |
| Docket Number | (No. 530.) |
| Citation | 87 S.E. 111,170 N.C. 399 |
| Court | North Carolina Supreme Court |
| Parties | CALDWELL LAND & LUMBER CO. v. CHESTER et ux. |
Action by the Caldwell Land & Lumber Company against Granville Chester and wife. From a judgment for plaintiffs, defendants appeal. Appellees move to docket and dismiss under rule 17, and appellants move for certiorari. Appeal dismissed, and certiorari denied.
Lowe & Lowe, of Banners Elk, for appellants.
S. J. Ervin, of Lumberton, and Mark Squires and W. C. Newland, both of Lenoir, for appellee.
CLARK, C. J. [1] In this case, upon the verdict of the jury coming in, judgment was rendered at the April term of Avery, which adjourned April 30, 1915. By agreement 90 days was allowed appellants to serve case on appeal, and plaintiff allowed 60 days thereafter to file exceptions or countercase. The defendants served, their case on appeal September 8, 1915. The plaintiff contested that this was too late, and served their exceptions on October 19th, without, however, waiving their right to object that the service of the case on appeal was too late. The judge properly held that the appellants' case was served too late, and refused to settle the case on appeal. The appellants contend that they were in time because by consent the judgment was to be signed in vacation, and was signed on June 19th, being less than 90 days before the service of the case on appeal. The judgment was rendered on the verdict before the adjournment of the court, April 30th. It is not necessary that a judgment be signed when it is rendered in open court. Bond v. Wool, 113 N. C. 20, 18 S. E. 77, and cases there cited.
The appellants do not distinguish between the signing in vacation of a judgment rendered at term and the rendering of a judgment in vacation by consent. Revisal, § 559. In the latter case there is no judgment to appeal from, and it is not known in whose favor it is until it is rendered, and hence the time in which to appeal and to serve case on appeal is counted from the filing of such judgment in the clerk's office.
But when, as in this case, the judgment is rendered in term, the party cast has notice, and must give his notice of appeal and serve his case in the prescribed or agreed time from the adjournment of that term. The appellants were in court when the judgment was rendered, and gave notice of appeal. By agreement they had 90 days in which to serve their case on appeal, and failed to do so.
The motion for a certiorari must be denied, and the motion...
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- Caldwell Land & Lumber Co. v. Chester