Cummings v. Huffman

• Decision Date: 31 October 1893
• Citation: 18 S.E. 170,113 N.C. 267
• Parties: CUMMINGS . v. HUFFMAN et al.
• Court: North Carolina Supreme Court

18 S.E. 170

113 N.C. 267

CUMMINGS .

v.HUFFMAN et al.

Supreme Court of North Carolina.

Oct. 31, 1893.

Case on Appeal—Service —Objections—Admission in Pleading—Effect.

1. A case on appeal must be served by an officer, unless appellee's attorneys accept service otherwise.

2. An appellant has a right to disregard an objection to the case on appeal, not served on him within five days after the service of such case on appellee, as required by statute; and appellant's failure to send the case to the judge for settlement after the service of such an objection is not an admission of the facts therein stated.

3. An appeal will not be dismissed simply because there is no case on appeal before the supreme court, but the judgment will be affirmed, unless error appears on the face of the record proper.

4. Where an answer to an amended complaint denies any indebtedness from defendant to plaintiff, the fact that the original answer admitted part of the debt sued for is not conclusive, but is a mere admission against interest, to be passed on by the jury; and it is error for the judge to enter judgment for the amount admitted in the original answer, where the jury has found against any indebtedness whatever.

Appeal from superior court, Alamance county; Whitaker, Judge.

Action by J. T. F. Cummings against D. W. M. Huffman and others, as executors of Rachel Graham, deceased, for services ren dered deceased as a physician. From a judgment in plaintiff's favor, defendants appeal Reversed.

The case on appeal served by defendants on plaintiff was returned to defendants indorsed as follows: "The plaintiff returns the statement of the case on appeal to the defendants with the following objections: That the action was tried at March term, 1892, which term ended on Saturday, the 19th day of March, 1892; that the defendants' case of appeal was served on the plaintiff by the sheriff of Alamance comity, by copy, on the 4th day of April, 1892, being more than ten days after the adjournment of said court and the end of said term; and the plaintiff insists that the defendants have lost their right of appeal by failing to serve their case on appeal within the time prescribed by law, and he therefore returns the copy of the case served on them to defendants, and objects to the said case for the reasons aforesaid. W. P. Bynum, L. M. Scott, Attorneys for Plaintiff. April 7, 1892."

Busbee & Busbee, for appellants.

J. E. Boyd, for appellee.

CLARK, J. There being a disputed question whether there was service, in time, of the case on appeal, if properly raised, it should have been submitted to the court below to find the facts. Walker v. Scott, 102 N. C. 487, 9 S. E. Rep. 488. The appellee contends that his objection indorsed on the case, that the service was on the 4th of April, (after expiration of the 10 days,) was admitted by the appellants' not sending the case to the judge to settle. Owens v. Phelps, 92 N. C. 231; Jones v. Call, 93 N. C. 170. Unfortunately for appellee, the exception was not served till April 11th, after the expiration of the five days allowed by statute, and therefore goes for naught There is however, no evidence of the service of the appellants' case within the time prescribed, and it, also, must be disregarded. Peebles v. Bras well, 107 N. C. 08, 12 S. E. Rep. 44; Manufacturing Co. v. Simmons, 97 N. C. 89, 1 S. E. Rep. 923. It is true a certiorari was sent down to which the clerk returns that there is indorsed on the original case deposited in his office by appellants, "Copy served on plaintiff by W. H. Carroll, atty. for defendants, April 1, 1892." Without in any way recognizing as valid this attempt to settle the...