House v. Jefferson, (No. 18.)

• Decision Date: 15 September 1920
• Docket Number: (No. 18.)
• Citation: 103 S.E. 922
• Parties: BALTIMORE BARGAIN HOUSE. v. JEFFERSON.
• Court: North Carolina Supreme Court

103 S.E. 922

BALTIMORE BARGAIN HOUSE.

v.JEFFERSON.

(No. 18.)

Supreme Court of North Carolina.

Sept. 15, 1920.

Allen and Walker, JJ., dissenting.

Appeal from Superior Court, Beaufort County; Cranmer, Judge.

Action by the Baltimore Bargain House against C. E. Jefferson. From a ruling refusing to dismiss a recordari obtained by defendant, plaintiff appeals. Appeal dismissed.

Judgment was rendered in this case by a justice of the peace Septemoer 3, 1919, for $44.79, the defendant being present in per son and by counsel; the justice requiring the plaintiff to produce a receipt for the goods alleged to be lost, before he would sign judgment, which the counsel for the plaintiff agreed to do. The counsel for the defendant entered notice of appeal upon condition that the judgment was so entered. On September 10, the plaintiff produced said receipt, and the justice entered the judgment which was docketed in the superior court September 18, 1919. On September 29, 1919, 19 days after the judgment was signed by the justice, and 11 days after it was docketed in the superior court, a term of court was held for the county. But neither at that term, nor at the next term, beginning November 17, was the appeal entered in the superior court. On December 2, 1919, no appeal having been docketed, the plaintiff caused execution to issue. On December 9, 1919, the defendant obtained a writ of recordari without notice to plaintiff. At April term, 1920. the plaintiff moved to dismiss the recordari, which was refused, and the plaintiff appealed.

A. W. Macnair, of Tarboro, for appellant.

Daniel & Carter, for appellee.

CLARK, C. J. The writ of recordari was improvidently granted, and the motion to dismiss should have been granted. Revisal, § 1491.

When an appeal from a justice of the peace is lost without fault on the part of the appellant, he is entitled to the writ of recordari as a substitute for the lost appeal. But here the appellant was guilty of inexcusable neglect, and was not entitled to the writ. The judgment was rendered September 3, conditional upon the plaintiff's producing a receipt, which he did a few days later, and the justice signed judgment September 10, which was docketed in the superior court September 18. At the term of the court September 29, the appellant with proper care should have made inquiry as to the disposition of the case which had been made by the justice, and certainly it was inexcusable negligence to wait nearly three months before applying for a recordari. Pants Co. v. Smith, 125 N. C. 590, 34 S. E. 552; Davenport v. Grissom, 113 N. C. 38, 18 S. E. 78, and cases there cited.

It is no excuse for the defendant if he depended on his counsel to look after the matter, for he could have attended to it himself. "It is not enough that parties to a suit should engage counsel and leave it entirely in his charge. They should, in addiction to this, give to it that amount of attention which a man of ordinary prudence usually gives to his important business." Roberts v. Allman, 106 N. C. 394, 11 S. E. 421, and citations thereto in Anno Ed.

It was incumbent upon the defendant to docket his appeal in the time required bylaw or show sufficient ground for the recordari in lieu of the appeal. Walker, J., in Tedder v. Deaton, 167 N. C. 479, S3 S. E. 616.

An appeal lies from the dismissal of an action, or of an appeal, for that is final; but it does not lie from the refusal to dismiss, for an exception should be noted and an appeal lies from the final judgment. Clements v. Railroad, 179 N. C. 225, 102 S. E. 399. If the party loses, then the whole case will come up for review. But, when an appeal is in fact taken, the court, though dismissing the appeal, in its discretion, may express an opinion upon the merits. Hoke, J., In Taylor v. Johnson, 171 N. C. 85, 87 S. E. 981. Each party will pay half the costs of appeal. Fleming v....