Fisher v. Fisher

• Decision Date: 13 December 1913
• Citation: 80 S.E. 395,164 N.C. 105
• Parties: FISHER v. FISHER ET AL.
• Court: North Carolina Supreme Court

80 S.E. 395

164 N.C. 105

FISHER v. FISHER ET AL.

Supreme Court of North Carolina

December 13, 1913

Appeal from Superior Court, Transylvania County; Adams, Judge.

Action by G. W. Fisher against J. C. Fisher and others, in which defendants appeal. On petition for certiorari to require the trial judge to settle the case on appeal. Petition allowed.

Clark C.J., dissenting.

A judgment signed out of term is entered as of the term.

This is a petition for a certiorari to require the judge of the superior court to settle the case on appeal, he having declined to do so, upon the ground that the defendant had lost his appeal by failing to serve his notice of appeal within the statutory time.

Upon the application to settle the case, his honor found the facts and ruled thereon as follows:

"(1) On the last day of the term the exceptions to the report of the referee were fully argued by counsel, and, at the conclusion of the argument, counsel consented that the court might take the papers to Asheville and consider the arguments and the exceptions.

(2) After considering the evidence, arguments, and exceptions the court prepared a draft of the judgment and forwarded it to the plaintiff's attorney in June, requesting him to confer with an attorney for the defendant and ascertain whether they could agree on the commissioners to be appointed. Nothing was heard from the attorneys until after the close of the courts in the Fifteenth judicial district and the undersigned had returned to his home in Carthage.

(3) After considerable correspondence, it was finally agreed that the judgment might be signed anywhere in the state and in vacation.

(4) The judgment was then immediately signed, and at the request of plaintiff's counsel was sent to him at Hendersonville, together with other papers in the cause, on June 28, 1913. At the same time a letter was mailed to W. W. Zachary, one of the attorneys for the defendant, at Brevard, notifying him that the draft of the judgment originally submitted had been signed and sent to Judge Ewart, plaintiff's attorney. W. W. Zachary, attorney for the defendant, had previously written the undersigned that he had examined the judgment, and had consented that it should be signed, as heretofore stated.

(5) The judgment and other papers in the cause were sent by Judge Ewart to the clerk of the superior court at Brevard, June 30, 1913, by express, and were received the same day by the express agent at Brevard, who notified the clerk of their receipt through the post office, July 1, 1913.

(6) On June 30th, Judge Ewart wrote the clerk at Brevard to mark the judgment filed as of that date.

(7) On July 1st, Judge Ewart wrote Mr. Zachary that he had sent by express to the clerk at Brevard the judgment and other papers in the cause, and that he could, if he desired, serve notice of appeal on Judge Ewart or on the plaintiff.

(8) That the papers sent by Judge Ewart to the clerk by express were not prepaid, and the clerk, for this reason, refused to take the papers out of the express office, and so notified the defendant's counsel. The clerk afterwards changed his mind and took the papers to his office on the 8th day of July, but did not notify defendant's counsel until July 12th that he had done so.

(9) On July 17th the defendant caused to be served on Judge Ewart a notice of appeal from the judgment, and on July 31st caused its statement of case on appeal to be served upon him.

(10) On August 8, 1913, the plaintiff's attorney prepared a 'counter case and exceptions,' and placed this paper in the hands of an officer, who made the following return: 'Executed the within by reading the contents to C. W. Clayton, of Zachary & Clayton, Attys. for defendant, the Toxaway Company. This 8th day of August, 1913. J. H. Pickelsimer, Sheriff, by W. H. Harris, D. S.'

(11) On August 13th, the plaintiff caused to be served on the defendant's attorney notice that he would make a motion before the undersigned at Monroe on the 25th day of August to 'strike from the files of the clerk and to disallow the appeal on the ground that notice was not given within the statutory period.'

(12) At the same time and place, after notice, the defendant moved to adopt its statement and to disallow the exceptions or counter case of plaintiff.

The court further finds:

(13) That Judge Ewart reserved and did not waive his right to move to disallow defendant's statement of case on appeal, by causing the counter case to be served, the counter case containing the statement that it was 'not intended to waive any rights of plaintiff to move to strike appeal from the files of the clerk.'

(14) A letter mailed at Carthage, June 28th, would reach Brevard, the residence of Mr. Zachary, in due course before July 1st.

(15) A letter mailed at Hendersonville, the residence of Judge Ewart, would reach Brevard in due course within a few hours; there being daily trains between these places.

(16) The court finds no evidence in the record that the defendant, appellant, caused its appeal to be entered by the clerk on the judgment docket.

(17) The plaintiff did not return the defendant's statement of case on appeal with his exceptions or counter case attached or indorsed, and that the same was served as hereinbefore stated within ten days after the appellant's statement of case was served on appellee.

The court further finds:

(18) Conceding that the failure of the clerk to take the papers from the express office (although the defendant's attorney was notified on July 1st that the papers had theretofore been sent to the clerk by express) cannot be imputed to defendant as laches, still Mr. Zachary, attorney for defendant, knew the contents of the judgment which had previously and before signing been submitted to him, and had actual notice of the rendition of the judgment by letter from the undersigned, written June 28th, and from plaintiff's counsel, written July 1st.

Conclusion of law: The judgment having been rendered by consent out of term, and in vacation, it was the duty of the defendant, appellant, to take its appeal within ten days after notice of the judgment, and as notice of appeal was served on plaintiff on July 17th, more than ten days after notice of the judgment, and the statement of the case was served on July 31st, the court is of the opinion that neither the notice of appeal nor the statement on appeal was served within the time required by law, and for that reason disallows defendant's appeal and orders it stricken from the files."

J. H. Merrimon, of Asheville, for appellants.

H. G. Ewart, of Hendersonville, for appellee.

ALLEN J.

If the defendant has lost the right to appeal by its own laches, in failing to give the notice of appeal within the statutory time, the certiorari ought not to issue, and, on the other hand, if the notice was served in time, it is entitled to the writ in order that the case may be settled and the appeal heard. The defendant knew on July 1, 1913, that a judgment had been signed denying its claim; the judgment reached the office of the clerk of the superior court on July 8, 1913, and the notice of appeal was served on July 17, 1913. If therefore time is to be counted against the defendant from July 1st, when it knew that judgment had been signed, it has lost the right of appeal, because notice thereof was not served within 10 days, but if from July 8th, when the judgment was filed with the clerk, the defendant has complied with the statute.

When a judgment is rendered out of term, the party desiring to review it must take his appeal "within ten days after notice thereof" (Revisal 1905, § 590), and within this time must cause notice of appeal to be served...