Delafield v. Lewis Mercer Const. Co

• Decision Date: 09 October 1894
• Citation: 20 S.E. 167,115 N.C. 21
• Parties: DELAFIELD et al. v. LEWIS MERCER CONST. CO. et al.
• Court: North Carolina Supreme Court

20 S.E. 167

115 N.C. 21

DELAFIELD et al.

v.LEWIS MERCER CONST. CO. et al.

Supreme Court of North Carolina.

Oct. 9, 1894.

Appeal—Service of Case.

Under Code, § 910, as amended by Act 1885, c. 180, providing that the court shall be held until the business is disposed of, the term ends when the judge leaves, and the time within which a case on appeal can he served must be computed from the day he leaves.

Appeal from superior court, Craven county; Graves, Judge.

Action by Clarence Delafield and others against the Lewis Mercer Construction Company and others. Judgment was rendered for plaintiffs, and defendants appeal. Affirmed.

W. D. McIver, for appellant Chattanooga Foundry & Pipe Works. Iredell Meares and C. R. Thomas, for other appellants.

O. H. Gulon and W. W. Clark, for appellees.

CLARK, J. There was once, to some extent, an idea prevalent that the term of a court extended to the last Saturday of the one, two, or three weeks for which it might be held, although the judge might have left This idea of a court in session without a judge is not warranted by law. Equally by the Code, § 910, and by the amendatory act of 1885 (chapter 180), it is provided that thecourt shall be held "and continue in session" for each county, for one week or more (as is there specified) "unless the business is sooner disposed of." Thus the session or term is not for the week or weeks specified, but only "until the business is disposed of." While this makes it the judge's duty to continue the. session the full time allotted, unless all the business is transacted, yet when he leaves the session or term is at an end, for no more business can be "disposed of." He cannot hear matters of either a civil or a criminal nature out of the courthouse, except by consent, unless it is "chambers" and not "term" business. Const art. 4, § 22, requiring the courts to be always open, must be construed in connection with section 11, and, except for matters requiring a jury, does not apply to the terms of courts and matters connected therewith. McAdoo v. Benbow, 63 N. C. 461. In Foley v. Blank, 92 N. C. 476, and Branch v. Walker, Id. 87, this idea of a "constructive" term of the court till the end of the week or two weeks was negatived, and it was pointed out that the court actually adjourned when the judge left for the term; and the evils were referred to which would result from recognizing as valid the filing of any pleadings, or anything else done, after the judge left In that case, as in this, his honor had directed that the court "should remain open and expire by limitation, " under the mistaken impression that the court could be constructively open after he had left. The judge, when he leaves the bench for the term, should cause due notice to be given by the crier of the final adjournment. This is regular and orderly, and will give notice to any having undisposed business to be brought to the attention of the court But should the judge omit to do this, or even mistakenly direct, as in above cases, that the court should remain open till "the term expire by limitation, " still there is an actual adjournment when he leaves the bench...