Comm'rs Of Greenville v. Old Dominion Steam-ship Co
| Decision Date | 18 October 1887 |
| Court | North Carolina Supreme Court |
| Parties | Commissioners of Greenville v. Old Dominion Steam-Ship Co. |
New Trial—Loss of Appeal Papers.
Where it appeared by affidavits that the statement of a case upon appeal had been lost by no fault of the attorneys for appellant, and that, by reason of lapse of time, the judge had forgotten the exceptions, and a new case could not be prepared, held, that a party could not be deprived of his appeal, and a new trial would be granted.
W. B. Rodman & Son, for defendant. No counsel for plaintiff.
This was an action for the recovery of real property, tried before Philips, J., at the June term, 1886, of Pitt superior court. There was a judgment in favor of the plaintiff, from which the defendant appealed to this court, of which he gave due notice, and filed the undertaking required. The clerk of the superior court refused to send up the transcript for the reason given by him, that there was no case on appeal signed by the judge. Upon affidavits filed, a certiorari was awarded at the last term of this court, and in return thereto a transcript of the record has been sent up without any statement of the case. It is shown by affidavits that a statement of the case, as required by the law regulating appeals, was made in apt time by the counsel for the appellant, and duly served on the counsel for the appellee; that it was not returned within the time prescribed; that, at the request of one of the counsel for the appellee, it was agreed that no advantage should be taken of any delay, and that, if it did not get to the supreme court in time for the October term it should be placed on the docket at the February term, and that the appellee should have a reasonable length of time to file exceptions to appellant's statement. Counsel for appellee retained the statement of the case till January, 1887, when it was returned by one of the counsel for the appellee to one of the counsel for the appellant, with a counter-statement, which was not agreed to; and on the second Saturday of the January term, 1887, of Pitt superior court, the counsel gave the case on appeal, with the counter-statement, to one of the counsel for the appellee. Repeated applications were made to appellee's counsel, and to each of them, for the case on appeal, with the response that they had been unable to find it, though they had looked therefor. It further appears from information that, owing to the lapse of time, the judge who...
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