Edwards v. Perry
| Decision Date | 22 May 1935 |
| Docket Number | No. 463.,463. |
| Parties | EDWARDS et al. v. PERRY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Frizzelle, Judge.
Action by C. A. Edwards and others against J. B. Perry. Judgment for plaintiffs, and from an order allowing plaintiffs' motion to strike out defendant's statement of case on appeal, defendant appeals. On plaintiffs' motion to affirm the judgment.
Affirmed.
Motion by plaintiffs to affirm judgment.
The case was tried at the second October term, 1934, which resulted in verdict for plaintiffs. Motion by defendant to set aside verdict was by consent continued to be heard at the second November term, 1934. The motion was denied and judgment signed at this latter term, from which the defendant gave notice of appeal: "Notice of appeal waived. * * * 45 days allowed to serve case on appeal, " etc.
The said second November term was a two-weeks term, beginning November 26, and on Friday of the second week, December 7, the judge left the bench, stating that he would not adjourn court, but would let the term expire by limitation, and no further business was transacted by the court at this term.
On the morning of January 22, 1935, counsel for appellant went to the office of counsel for appellees, both being residents of the town of Wake Forest, and requested an additional extension of time within which to serve statement of case on appeal.
Counsel for appellant thereupon prepared and served his statement of case before the end of that day, January 22, 1935.
Plaintiffs moved before the trial court to strike out appellant's statement of case on appeal, because not served within the time fixed, which motion was allowed, the court finding that there had been no agreement of extension or waiver of the time prescribed, and defendant appeals from this ruling.
Gulley & Gulley, of Wake Forest, for appellant,
E. D. Flowers and J. G. Mills, both of Raleigh, for appellees.
Counsel for both sides were evidently under the impression that January 22, 1935, was the last day, prescribed by the court, for the service of appellant's statement of case on appeal. They dealt with the matter on that day upon this assumption. The discovery, subsequently made perhaps, that the judge left the bench on Friday, instead of Saturday, of the second week of the term, disclosed January 21 as the last day for the service of appellant's case. Hardee v. Tim-berlake, 159 N. C. 552, 75 S. E. 799; May v. Ins. Co., 172 N. C. 795, 90 S. E. 890; Guano Co. v. Hicks, 120 N. C. 29, 26 S. E. 650; Del-afield v. Const. Co., 115 N. C. 21, 20 S. E. 167. Hence, the order...
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State v. Moore
...from the files by the trial judge. The right to bring up the "case on appeal" is gone. State v. Allen, 208 N.C. 672, 182 S.E. 140; Edwards v. Perry, supra; Pruitt v. Wood, 199 N.C. 788, 156 S.E. It is axiomatic among those engaged in appellate practice that a "statement of case on appeal no......
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Bell v. Nivens
...in the absence of an understanding to that effect. Forte v. Boone, 114 N.C. 176, 19 S.E. 632; Hicks v. Westbrook, supra; Edwards v. Perry, 208 N.C. 252, 179 S.E. 892; Roberts v. Bus Co., supra. Hence, the Certiorari, disallowed. Motion to dismiss, denied. Motion to affirm, granted. ...
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State v. Jones
...exceptive assignment of error addressed to the point. No error appears on the face of the record as filed in this Court. Edwards v. Perry, 208 N.C. 252, 179 S.E. 892; State v. Moore, 210 N.C. 686, 188 S.E. 421. Hence the judgment of forfeiture will be upheld. State v. Hall, 224 N.C. 314, 30......
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State v. Parnell
...Bus Co., 198 N.C. 779, 153 S.E. 398. Non constat that error may not appear on the face of the record proper. Edwards v. Perry, 208 N.C. 252, 179 S.E. 892; Wallace v. Salisbury, 147 N. C. 58, 60 S.E. 713. The motion to affirm will be allowed. State v. Dawkins, 190 N.C. 443, 129 S.E. 814; McN......