Kerr v. Drake

• Decision Date: 05 October 1921
• Docket Number: 230.
• Citation: 108 S.E. 393,182 N.C. 764
• Parties: KERR ET AL. v. DRAKE ET AL.
• Court: North Carolina Supreme Court

108 S.E. 393

182 N.C. 764

KERR ET AL. v. DRAKE ET AL.

No. 230.

Supreme Court of North Carolina

October 5, 1921

Appeal from Superior Court, Sampson County; Lyon, Judge.

Action by J. K. Kerr and another against W. B. Drake, Jr., and another. Judgment for plaintiffs, and defendants appeal. Appeal dismissed because of defendants' failure to file transcript of the record within a required time under Supreme Court Rule 17 (66 S.E. vii), and defendants move to reinstate appeal. Motion denied.

This is a motion by defendants to reinstate the appeal in this case which had been docketed and dismissed under rule 17 (66 S.E. vii) on motion of plaintiffs.

The failure of appellees' attorney to inform appellants' counsel, while discussing the case following appellants' failure to file transcript of record within the required time, that appellees would move to dismiss the appeal under Supreme Court Rule 17 (66 S.E. vii), was not a waiver of the right to move for such dismissal.

Appellees entitled under Supreme Court Rule 17 (66 S.E. vii) to move for dismissal of appeal because of appellants' failure to file transcript of record within the required time, were not required to give appellants notice of such motion.

B. H Crumpler, of Clinton, and A. L. Cox, of Raleigh, for appellants.

Butler & Herring and Grady & Graham, all of Clinton, for appellees.

PER CURIAM.

This case was tried at June special term, 1921, of Sampson, before Lyon, J. Seven days before the docket from that district was reached, the appellee filed the certificate required by rule 17 (174 N.C. 831, 66 S.E. vii) and his motion to docket and dismiss under said rule, which was allowed when the call of the district began. Thereafter, on the same day, the appellants filed an affidavit and moved to reinstate.

There was a verdict against the defendants and judgment from which they appealed. By consent the defendants obtained 30 days from the adjournment of said term of court to serve case on appeal, and plaintiffs were allowed 30 days thereafter to serve counter case. No case on appeal was served by defendants within the time agreed upon, but, on the contrary it was not served until September 2, 1921, i. e., 61 days after adjournment of said June special term.

On September 27 the appellants filed an affidavit and motion to reinstate the case on appeal which sets forth the above agreement of 30 days after July 2 to serve counter case, and alleged that on July 29, 1921, the resident counsel in Sampson having received transcript of the evidence from the court stenographer, forwarded the same to their associate counsel in the city of Raleigh. It appears from the affidavit of the stenographer that she furnished the evidence complete to defendants' counsel in Clinton on July 16, 1921. It does not appear on what date the defendants' counsel forwarded the papers to counsel in Raleigh. There is no evidence of any delay in the mail. The counsel in Raleigh filed his affidavit that he was absent from his office in Raleigh from July 30 to August 15, and that after receiving the papers on August 15 he was unable to see his client, one of the codefendants in this case, until on the following week, owing to his client's absence from the city and his being busy, and further that after seeing his client he himself was again called from the city and did not return till August 29, and upon his return he completed the preparation of the case on appeal and forwarded it to the counsel in Clinton on September 1, who delivered it the next day to counsel for the plaintiff, who on September 12 notified the counsel for the defendants that they would not accept the case on appeal but would move to dismiss, under rule 17, which was done in apt time and the motion was allowed.

The only other allegation the appellants make is that between September 2 when the case was served, and September 12, and prior to the receipt of this notice one of the counsel for the appellants met one of the counsel for the defendants, who did not then...