Davison v. West Oxford Land Co.

• Decision Date: 09 March 1897
• Citation: 26 S.E. 782,120 N.C. 259
• Parties: DAVISON et al. v. WEST OXFORD LAND CO. et al.
• Court: North Carolina Supreme Court

26 S.E. 782

120 N.C. 259

DAVISON et al. v. WEST OXFORD LAND CO. et al.

Supreme Court of North Carolina

March 9, 1897

Action by G. W. Davison and others against the West Oxford Land Company and others. From a judgment for defendants plaintiffs appeal. On motion to dismiss. Denied.

Supreme Court Rule No. 5 (24 S.E. iv), provides that the transcript on appeal from a judgment rendered before the commencement of a term of the supreme court must be docketed at such term. Held, that where the trial term begins before, but is not adjourned until after, the first day of the term of the supreme court, appellant need not docket his appeal until the ensuing term of the supreme court; the rule that judgments date as of the first day of the term at which they are rendered having no application to appeals, as to which the rule is that judgments date as of the last day of the term.

A. J Feild, for plaintiffs.

J. W Graham and A. W. Graham, for defendants.

CLARK J.

This is a motion to docket and dismiss the plaintiffs' appeal in this case, under rule 17 (24 S.E. iv.). It appears that the term of the court below at which the trial was had began before the first day of this term of this court, but that it did not adjourn till after the term here had begun. While such appeal might be docketed at this term, this is not imperative (rule 5, 24 S.E. iv.; Porter v. Railroad Co., 106 N.C. 478, 11 S.E. 515); and the motion to docket and dismiss must be denied. The rule that the term of a court is considered as one day, and that all judgments date as of the first day of the term (Farley v. Lea, 20 N.C. 169; Norwood v. Thorp, 64 N.C. 682; McNeill v. McDuffie, 119 N.C. 336, 25 S.E. 871), is a very necessary one to place all judgments taken at the same term upon the same footing, without any priority one over the other. But this rule has no application to an appeal, since as to that all judgments, no matter on what day taken, are deemed as of the last day of the term, because they are in fieri (Gwinn v. Parker, 119 N.C. 19, 25 S.E. 705) till the actual adjournment of the court. Hence notice of appeal, filing appeal bond, taking exceptions to the charge and serving "case on appeal," are all to be done not within 10 days of the first day of the term (Worthy v. Brady, 91 N.C. 265), nor within 10 days of the actual rendition of the judgment, but from the adjournment ( Turrentine v. Railroad Co., 92 N.C. 642; Simmons v....