Holmes v. Holmes

• Decision Date: 31 January 1881
• Citation: 84 N.C. 833
• Court: North Carolina Supreme Court
• Parties: Holmes v. Holmes

84 N.C. 833

Holmes

v.Holmes

Supreme Court of North Carolina.

January Term, 1881.

OPINION TEXT STARTS HERERUFFIN, J.

The petitioners, who are the defendants in the above entitled action, make application for a writ of certiorari and assign the following reasons: That at a trial of the action had at June term, 1880, of the superior court of New Hanover, there was a verdict and judgment in favor of the plaintiffs, from which the petitioners appealed, giving due notice of their appeal and executing a bond. That no statement of the case on appeal was prepared and served within the time; but their attorney had an understanding with the plaintiffs' attorneys that it would be satisfactory to all parties if such statement was prepared in time for the present term of this court; which understanding was frequently recurred to and recognized by the attorneys of both parties. That about the 8th of January, 1881, petitioners' attorney prepared their case on appeal and submitted it to plaintiffs' attorneys, who received it, and after an examination, returned it with a statement of their objections. That the petitioners' attorney admitted the exception of the plaintiffs, but afterwards discovered that there was an admission in the statement which he had prepared, as to the effect of a certain deed, which he did not design making; and thereupon he prepared another statement of the case, making the deed a part thereof, and omitting what was said about its effects in the former statement. That on presenting this last statement to plaintiff's attorneys, it was assented to without being read, but such assent was afterwards withdrawn. That the attorneys of both parties then had a meeting and attempted to reconcile their differences, but failing to agree, no statement of the case was made, and thereby the petitioners have lost their appeal. The petition is supported by the affidavit of Mr. Ricaud, who was of counsel for the defendants in the action.

The plaintiffs file a counter-affidavit of their attorney, Mr. Bellamy, who states the facts to be that after having returned with his exceptions, the statement first presented to him about the 8th of January, he was accosted on the streets by Mr. Ricaud--the latter having in his hand a roll of papers which affiant supposed to be the case originally presented and returned with exceptions. That Mr. Ricaud, pointing to a certain sentence in the paper he held in his hand, said he would like to add the words, “a copy of which deed is...