Freeman v. Bennett
| Decision Date | 19 November 1958 |
| Docket Number | No. 525,525 |
| Parties | F. A. FREEMAN v. Hubert BENNETT. |
| Court | North Carolina Supreme Court |
Ottway Burton and Don Davis, Asheboro, for plaintiff, appellant.
No counsel (in this Court) contra.
We take judicial notice of the fact that the next term of Randolph Superior Court after March 15, 1958, convened April 7, 1958 ('the fifth Monday after the first Monday in March to continue two weeks for the trial of civil cases only,' G.S. § 7-70, Ch. 1373, Session Laws of 1955), and that the presiding judge was the regular superior court judge then holding the courts of the Nineteenth Judicial District.
Nothing in the record indicates that defendant moved at said April 7th Term for a writ of recordari or otherwise brought to the attention of the presiding judge any matter relating to the status of his purported appeals.
In Starr Electric Co. v. Lipe Motor Lines, 229 N.C. 86, 47 S.E.2d 848, Winborne, J. (now C. J.), reviews the statutes and cites the prior decisions of this Court relevant to the procedure for perfecting an appeal to the superior court from a judgment of a justice of the peace.
Judge Thompson found as a fact that defendant docketed his appeal during said April 7th Term, to wit, on April 14, 1958. However, plaintiff excepted specifically to this finding of fact and to each of the other findings of fact upon which Judge Thompson's order was based; and the agreed case on appeal, signed by counsel for the respective parties, does not include the evidence, if any, upon which these findings were based.
Assuming defendant's appeal was docketed on April 14, 1958, the justice of the peace did not make a return to the superior court and file with the clerk thereof the papers, proceedings and judgment in the case within ten days after defendant's notice of appeal in open court as required by G.S. § 7-181. Had he done so, the appeal would have been docketed more than ten days prior to the commencement of said April 7th Term. Compare Starr Electric Co. v. Lipe Motor Lines, supra. While docketing on April 14, 1958, if such occurred, would obviate the necessity of having the papers sent up under compulsion of a writ of recordari, there would remain for decision the question as to whether the failure of the justice of the peace to comply with G.S. § 7-181 was caused by defendant's default. This would present a question of fact for the court, determinable on the basis of the evidence presented as in case of a hearing on a petition for writ of recordari.
Nothing appears to indicate that defendant either pleaded or offered evidence tending to show that he was not in default in respect of the failure of the justice of the peace to make return, etc., as required by G.S. § 7-181.
When a question of fact is presented for decision, the court's findings are conclusive on appeal if supported by competent evidence. Fairchild Realty Co. v. Spiegel, Inc., 246 N.C. 458, 465, 98 S.E.2d 871. Moreover, it is presumed that findings of fact are supported, hence conclusive on appeal, unless challenged by appropriate exceptions. Wyatt v. Sharp, 239 N.C. 655, 658, 80 S.E.2d 762. Even so, when, as here, each material finding of fact is challenged by specific exception, such findings cannot stand in the absence of evidence in the record tending to support them. Scott & Co. v. Jones, 230 N.C. 74. 52 S.E.2d 219.
While, upon this record, it appears that the order of Judge Thompson cannot be sustained, the question arises as to whether plaintiff had the right of immediate appeal therefrom. This question was not discussed in plaintiff's brief. No brief was filed in behalf of defendant.
Bynum, J., in Perry v. Whitaker, 77 N.C. 102, stated: 'An appeal lies from an order of the judge either granting or refusing to grant the writ (of recordari), * * *' In accord: Collins v. Gilbert, 65 N.C. 135; Barnes v. Easton, 98 N.C. 116, 3 S.E. 744; Hunter v. Atlantic Coast Line R. Co., 161 N.C. 503, 77 S.E. 678; Id., 163 N.C. 281, 79 S.E. 610.
Rule 14, Rules of Practice in the Superior Courts, 221 N.C. 574, 577, in pertinent part, provides: See Barnes v. Easton, supra.
The cases cited below either decide or contain expressions to the effect that an immediate appeal does not lie from an order granting the writ of recordari.
1. In Merrell v. McHone, 126 N.C. 528, 36 S.E. 35, plaintiffs' appeal to this Court was from a final judgment in favor of defendant after trial on the merits in the superior court. Plaintiff had obtained a judgment before a justice of the peace. A superior court judge had denied plaintiffs' motion to dismiss defendant's purported appeal therefrom and had granted defendant's motion for writ of recordari. Plaintiffs excepted to this ruling but proceeded to trial. This Court, upon plaintiffs' appeal from said final judgment, held that the writ of recordari had been properly issued. The opinion contains the following: The decision would seem to be direct authority only for the proposition that a plaintiff may except to such ruling and bring his exception forward on his appeal from a final adverse judgment after trial in the superior court.
2. In Taylor v. Johnson, 171 N.C. 84, 87 S.E. 981, 983, plaintiff's appeal to this Court was from the denial of his motion in the superior court to dismiss defendant's purported appeal from a judgment in plaintiff's favor rendered in the Harnett County Recorder's Court. It appeared that the defendant had not docketed his appeal or moved for recordari or certiorari within the prescribed time. While this Court stated that the defendant's appeal should have been dismissed on plaintiff's motion, the decision was 'Appeal dismissed.' The statement in the opinion, pertinent to this feature of the case, is the following: 'Under our decisions it seems that an appeal does not lie to the Supreme Court from a ruling of this character; the better practice being to note an exception and proceed to a further disposition of the cause.' (Our italics.) No decisions are cited in support of the quoted statement.
3. In Bargain House v. Jefferson, 180 N.C. 32, 103 S.E. 922, 923, plaintiff obtained a judgment before a justice of the peace. Defendant did not docket his appeal or move for recordari within the prescribed time. Later, without notice to plaintiff, defendant obtained a writ of recordari. The hearing was on plaintiff's motion to dismiss the writ of recordari, which motion was denied and plaintiff appealed. This Court said: 'The writ of recordari was improvidently granted, and the motion to dismiss should have been granted.' However, the decision was 'Appeal dismissed.' The statements in the opinion, pertinent to this feature of the case, are the following: The cited case (Clements v. Southern R. Co.) did not involve an appeal from a justice of the peace. In the superior court action, defendant entered a special appearance and moved to dismiss on the ground that there had been no valid service of process. Plaintiff appealed from an order allowing defendant's said motion and dismissing the action; and, upon such appeal, the said order was reversed.
4. In Stewart v. Craven, 205 N.C. 439, 171 S.E. 609, plaintiff...
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