Holloman v. Holloman
| Decision Date | 04 October 1916 |
| Citation | 90 S.E. 10 |
| Parties | HOLLOMAN. v. HOLLOMAN. |
| Court | North Carolina Supreme Court |
Action by Pennie Holloman against Calvin Holloman. Judgment for plaintiff, and defendant appeals, and moves for a certiorari to the clerk's office to send up the appellant's statement of the case on appeal as the statement of the case, and the appellee moves for an affirmance. Motion for certiorari denied, and judgment affirmed.
Winborne & Winborne, of Murfreesboro, for plaintiff.
R. C. Bridger, of Winton, for defendant.
This is a petition for a certiorari by the defendant, who appealed as a pauper. He alleges that by consent the appellant was allowed 60 days to serve the case on appeal and the appellee 60 days thereafter to serve his counter case, or exceptions; that on June 26th, within the time agreed, the appellant served his case on appeal, and that on July 10, 1916, the appellee served what purported to be her exceptions or counter case, which the appellant deeming insufficient under Revisal § 591, for the reason that the appellee did not return with his counter case the copy of the appellant's statement of his case, "with her approval of the specific amendments indorsed or attached, " he did not send the papers to the judge to settle the case on appeal, and he asks that this court send a certiorari to the clerk's office to send up the appellant's statement of the case on appeal as the "statement of the case." The appellee filed an affidavit in reply, stating that the appellee duly served its counter case on the defendant's counsel on July 10th, well within the time allowed, and that, further, about the middle of July, 1916, appellee's counsel wrote to the judge, by whom the case was tried, inquiring what has been done about settling the case on appeal, to which the judge replied that no papers had been sent to him, and that he had heard nothing from it, and that at request of the judge they sent him copies of the evidence, the exceptions taken on the trial, and the court's charge, as taken down by the court stenographer, and that on August 9, 1916, within the 60 days allowed appellee, Judge Stacy returned all these to plaintiff's counsel with the statement, "I have not been requested to settle this case and am returning the papers you sent me."
The failure of the appellee to return a copy of the case on appeal served on her by the appellant was not such a default as entitled the appellant to decide in his own favor that it was fatal. If the appellant had wished to take advantage...
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