Chester & Lenoir R.R. Co. v. Richardson
| Citation | 82 N.C. 343 |
| Parties | CHESTER & LENOIR RAILROAD COMPANY v. J. M. RICHARDSON. |
| Decision Date | 31 January 1880 |
| Court | North Carolina Supreme Court |
OPINION TEXT STARTS HERE
MOTION to dismiss an Appeal from a justice's court, heard at Fall Term, 1879, of LINCOLN Superior Court, before Buxton, J.
The motion was refused and the defendant appealed.
The plaintiff was not represented in this court.
Mr. John D. Shaw, for defendant .
On the trial before a justice of the peace on the 1st day of December, 1876, both parties being present, judgment was rendered for defendant. On the 8th day of the month the appeal was taken by the plaintiff, written notice thereof left with the justice, and an undertaking entered into for the stay of execution. No notice of the appeal, written or verbal, was given to the defendant. Upon the calling of the cause in the superior court at fall term, 1879, the defendant moved to dismiss the plaintiff's appeal for want of notice, as required by Bat. Rev., ch. 63, § 54. The motion was denied and notice ordered to issue of such appeal, and from this ruling the defendant appeals.
It has been too often adjudged in this court to need further discussion, that an appeal does not lie from the refusal of the judge to dismiss the action; and if taken, the appeal will be dismissed. The proper course is to proceed with the trial “leaving the parties to save their rights by exception” or to retain the cause until the trial can be properly had. Mitchell v. Kilburn, 74 N. C., 483; Crawley v. Woodfin, 78 N. C., 4; McBryde v. Patterson, Id., 412.
The direction that notice shall issue to supply the appellant's omission, suggested by a remark of RODMAN, J., delivering the opinion in Marsh v. Cohen, 68 N. C., 283, as we suppose, does not “affect a substantial right,” within the meaning of the code, § 299, so as to give a right of appeal. Sutton v. Schonwald, 80 N. C., 20. The appeal must therefore be dismissed and it is so ordered.
Appeal dismissed.
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Cameron v. Bennett Et Ux
...of a motion to dismiss an action. Mitchell v. Kilburn, 74 N. C. 483; McBryde v. Patterson, 78 N. C. 412; Railroad Co. v. Richardson, 82 N. C. 343; Plemmons v. Improvement Co., 108 N. C. 614, 13 S. E. Rep. 188. There are numerous other cases to the same effect. For the same reason, an appeal......
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Hunter v. Atl. Coast Line Ry. Co
...giving of notice, etc., a reviewing court is allowed a very wide discretion (State v. Johnson, 109 N. C. 852, 13 S. E. 843; Railroad v. Richardson, 82 N. C. 343), our decisions also hold that an order granting a writ of recordari to a justice's court, and directing that a cause be set down ......
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Hunter v. Atlantic Coast Line Ry. Co.
...the giving of notice, etc., a reviewing court is allowed a very wide discretion ( State v. Johnson, 109 N.C. 852, 13 S.E. 843; Railroad v. Richardson, 82 N.C. 343), our also hold that an order granting a writ of recordari to a justice's court, and directing that a cause be set down for tria......
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Cameron v. Bennett
...lie from the refusal of a motion to dismiss an action. Mitchell v. Kilburn, 74 N.C. 483; McBryde v. Patterson, 78 N.C. 412; Railroad Co. v. Richardson, 82 N.C. 343; Plemmons v. Improvement Co., 108 N.C. 614, 13 Rep. 188. There are numerous other cases to the same effect. For the same reason......