Rawls v. Norfolk Southern R. Co

• Decision Date: 11 October 1916
• Docket Number: (No. 191.)
• Court: North Carolina Supreme Court
• Parties: RAWLS, TINGLE & CO. v. NORFOLK SOUTHERN R. CO.

(172 N.C. 211)

90 S.E. 116

RAWLS, TINGLE & CO.

v.NORFOLK SOUTHERN R. CO.

(No. 191.)

Supreme Court of North Carolina.

Oct. 11, 1916.

Appeal from Superior Court, Pamlico County; Whedbee, Judge.

Action by Rawls, Tingle & Co., against the Norfolk Southern Railroad Company. Froma judgment of a justice of the peace for plaintiff, defendant appealed to superior court. From a judgment of the superior court for plaintiff for less than the amount claimed, he appeals. Affirmed.

When the case was called for trial at May term, 1916, the plaintiff moved to dismiss the appeal because it was not docketed at the next term after the trial before the justice. The motion was denied, and the plaintiff excepted. The court found the following facts in reference to the appeal: That the case was tried the 18th of August, 1914, before I. W. Miller, J. P. Judgment rendered in favor of plaintiff. Defendant in open court gave notice of appeal, and paid the justice for making his return, and also 50 cents to cover cost of docketing same in the superior court. Before the next term of court the justice mailed the return in this case to the then clerk of the court, but did not transmit to him the fee of 50 cents for docketing same. The clerk held same until December 5, 1914. It was then after the next term of court, when counsel for defendant, learning of the reason the clerk did not docket same, paid him the 50 cents on December 5, 1914, and had same placed on the docket for trial. That this case has been for trial several times. This is the first time this motion was made. It also appears from the record that both plaintiff and defendant took the depositions of nonresident witnesses preparatory to the trial. There are other exceptions which will be referred to in the opinion. There was a verdict and judgment, in favor of the plaintiff, but for less than the amount claimed by him, and he appealed.

Z. V. Rawls, of Bayboro, for appellant.

Moore & Dunn, of Newbern, for appellee.

ALLEN, J. The authorities fully sustain the position of the plaintiff that it is the duty of one, who appeals from a judgment of a justice of the peace, to see that his appeal is docketed at the next term of the superior court (Abell v. Power Co., 159 N. C. 348, 74 S. E. 881), but as was said in Love v. Huffines, 151 N. C. 380, 66 S. E. 304:

"It does not follow that the appellee, by whom the judgment before the justice was obtained, could not waive his right to object to any irregularities in the procedure by which the case was carried into the superior court, by his own laches or...