People's Bank & Trust Co. v. Parks
| Decision Date | 24 February 1926 |
| Docket Number | 107. |
| Parties | PEOPLE'S BANK & TRUST CO. v. PARKS ET UX. |
| Court | North Carolina Supreme Court |
Action by the People's Bank & Trust Company against B. P. Parks and wife. From a judgment for plaintiff, defendants appeal. On motion by defendants for certiorari to have case brought up and heard on appeal. Motion denied.
Trial court cannot abrogate Supreme Court rules in extending time for appeal under statute. C.S. § 643, amended by Pub.Laws 1921, c. 97.
Appellants entitled to certiorari only when failure to perfect appeal is due to error or act of court or officers.
J Faison Thomson, D. H. Bland, and N.W. Outlaw, all of Goldsboro, for movants.
This was an action to set aside a deed alleged to have been made by B. P. Parks to his wife, Myrtle Parks, with intent to hinder, delay, and defraud the creditors of the said B. P Parks. The case was tried at the October term, 1925, Wayne superior court, and resulted in a verdict and judgment in favor of the plaintiff. The defendants gave notice of appeal to the Supreme Court. By consent, defendants were allowed 60 days within which to prepare and serve statement of case on appeal, and the plaintiff was allowed 60 days thereafter to file exceptions or counterstatement of case. This application for certiorari was made February 10, 1926, for the reason-- "that said plaintiff and defendant are unable to agree as to a correct statement of case on appeal, and it is impossible to have same settled by the judge who tried the case in time to be presented at this term of the Supreme Court."
The defendants served their statements of case on appeal December 24, 1925, the last day allowed to them for serving same, and the plaintiff served its countercase February 4, 1926, less than 60 days thereafter. It does not appear that the papers have been sent to the judge or that he has been requested to set a time for settling the case before him. The record proper, upon which the motion for certiorari is based, was not filed in this court until February 10, 1926, less than 14 days before the call of the docket from the Fourth district the district to which the case belongs. There is nothing on the record to suggest the necessity of any unusual time in preparing the case on appeal.
Under our settled rules of procedure, an appeal from a judgment rendered prior to the commencement of a term of the Supreme Court must be brought to the next succeeding term; and, to provide for a hearing in regular order, it is required that the same shall be docketed here 14 days before entering upon the call of the district to which it belongs, with the proviso that appeals in civil cases from the First, Second Third, and Fourth districts, tried between the 1st day of January and the first Monday in February, or between the 1st day of August and the fourth Monday in August, are not...
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...(second italics added) (first citing Waller v. Dudley , 193 N.C. 354, 137 S.E. 149 (1927) ; then citing People's Bank & Tr. v. Parks , 191 N.C. 263, 131 S.E. 637 (1926) ; then citing Finch v. Comm'rs of Nash Cty. , 190 N.C. 154, 129 S.E. 195 (1925) ; and then citing State v. Farmer , 188 N.......