Churchill v. Brooklyn Life Ins. Co.

• Decision Date: 28 February 1885
• Citation: 92 N.C. 485
• Court: North Carolina Supreme Court
• Parties: W. L. CHURCHILL v. THE BROOKLYN LIFE INSURANCE CO.

92 N.C. 485

W. L. CHURCHILL

v.THE BROOKLYN LIFE INSURANCE CO.

Supreme Court of North Carolina.

February Term, 1885.

OPINION TEXT STARTS HERE

MOTION by the defendant for a certiorari as a substitute for an appeal, heard at FEBRUARY TERM, 1885, of the Supreme Court.

The facts appear in the opinion.

Messrs. Battle & Mordecai, for the plaintiff .

Messrs. George V. Strong, Walter Clark and E. C. Smith, for the defendant .

SMITH, C. J.

In this action the plaintiff, at Fall Term, 1882, of the Superior Court of Greene, recovered judgment against the defendant company by default, for want of an answer, for the full amount of his demand, which judgment was afterwards modified in form and made interlocutory, subject to an inquiry of damages before the jury, which ruling was affirmed on appeal to this court. Churchill v. Ins. Co., 88 N. C., 205.

At a subsequent term the damages were assessed, and from the judgment rendered therefor the defendant entered an appeal to this court, the amount of the undertaking was fixed at fifty dollars, and thirty days by consent allowed in which to perfect the same. The term elapsed without this being done, and the appeal being lost, the defendant now applies for a writ of certiorari, as a substitute for the appeal, to bring up the record in order that the errors assigned may be heard and decided.

The affidavit, in support of the petition, sets out the following facts:

1. The defendant had in its employment in this State a regular attorney to manage its legal business, with whom it corresponded, who, not practicing in Greene county, committed the company's defence to the action to George V. Strong, Esq., and he undertook its management.

2. The latter ceasing to attend the court of that county, placed the case in the hands of a third attorney who did attend there, and acted under the said Strong, the affiant.

Affiant at the time of the rendition of the judgment and for some time afterwards was absent from his home on account of ill health, a fact unknown to the attorney who conducted the defence, whose residence was in a distant county and at a place with which mail communications were slow and irregular, in consequence of which, advice of the result only reached affiant after considerable delay, while the regularly employed attorney of the company was also absent from his home in attendance upon his sick wife.

When the latter was informed of the result of the trial, he directed affiant to fill out an undertaking on appeal and transmit...