Hardee v. Timberlake

• Decision Date: 18 September 1912
• Citation: 75 S.E. 799,159 N.C. 552
• Court: North Carolina Supreme Court
• Parties: HARDEE et al. v. TIMBERLAKE et al.

75 S.E. 799

(159 N.C. 552)

HARDEE et al.

v.TIMBERLAKE et al.

Supreme Court of North Carolina

Sept. 18, 1912.

.

1. Courts (§ 65^*)—Expiration op "Term op Court."

A "term of court" expired when the court left the bench, after sitting an extra day to sign judgments on the conclusion of all jury trials.

[Ed. Note.—For other cases, see Courts, Cent. Dig. § 230; Dec. Dig. § 65.*

For other definitions, see Words and Phrases, vol. 8, pp. 6918-6920.]

2. Appeal and Error (§ 564^2-*)—Service of Case.

Where, by consent, a party was allowed 30 days in which to serve the case on appeal, service 32 days after the close of the term was too late and a nullity.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555, 2558, 2559; D«c. Dig. § 564.*]

Appeal from Superior Court, Pitt County; Whidhee, Judge.

Action by Henry Hardee and others against H. A. Timberlake and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

W. F. Evans, for appellants.

F. G. James & Son, for appellees.

CLARK, C. J. This is a motion to dismiss because the "case on appeal" was not served on time. The facts found by his honor are that "on Friday, May 24, 1912, all jury trials being concluded, the court discharged the jury, but announced that he would come to the courtroom Saturday morning, May 25th, to sign judgments, which he did at that time, and then went to his home, which was in the same town. The case on appeal was served June 26th, 1912. By agreement, the appellant was allowed 30 days in which to serve case on appeal."

The term of the court expired Saturday morning, May 25th, when the court left the bench for the term. Delafield v. Construction Co., 115 N. C. 21, 20 S. E. 167, where the subject is fully discussed. May having 31 days, the time allowed by consent (30 days) in which to serve case on appeal expired June 24th; and therefore service on June 26th was too late and a nullity. Guano Co. v. Hicks, 120 N. C. 29, 26 S. E. 650, and cases there cited.

There being no error upon the face of the record proper, and there being no case on appeal, the judgment below must be affirmed.

*.For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

2-*.For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes