Roberts v. Partridge

• Citation: 24 S.E. 15,118 N.C. 355
• Parties: ROBERTS et al. v. PARTRIDGE et al.
• Decision Date: 10 March 1896
• Court: United States State Supreme Court of North Carolina

24 S.E. 15

118 N.C. 355

ROBERTS et al. v. PARTRIDGE et al.

Supreme Court of North Carolina

March 10, 1896

Appeal from superior court, Guilford county; Greene, Judge.

Action by Robert R. Roberts and another against William Partridge and others. There was a judgment for defendants, and plaintiffs appeal. Affirmed.

Under court rule 39, requiring agreements of counsel to be enforced to be in writing, disputed oral stipulations of counsel will not be given effect.

Shepherd & Busbee, for appellees.

CLARK, J.

The facts as to service of the case on appeal are very similar to those in the recent cases of Cumming v. Hoffman, 113 N.C. 267, 18 S.E. 170, and Lyman v. Ramseur, 113 N.C. 503, 18 S.E. 690. The attempted service of the appellants' case on appeal by counsel was a nullity. State v. Price, 110 N.C. 599, 15 S.E. 116. The affidavit of the appellants' counsel that the defendants' counsel verbally agreed to accept service is denied by the latter, and cannot be considered. Rule 39 (12 S.E. ix.) of this court, and numerous cases cited in Clark's Code (2d Ed.) 704, and in the Supplement to the same, page 103. The return of the appellants' case by the appellees with exceptions thereto, if in apt time, and without objecting to the defective service thereof, might have been deemed a waiver; and in such case the appellants, not having sent the papers to the judge to settle the case on disagreement, would be taken to have accepted the appellees' amendments (Lyman v. Ramseur, supra), and the case on appeal would be the appellants' statement as amended by the appellees' exceptions (Jones v. Call, 93 N.C. 170; Owens v. Phelps, 92 N.C. 231). But the appellants' counsel rejected the appellees' counter case, as he had a right to do, on the ground that it was returned too late, and neither sent the papers to the judge to settle the case, nor caused his own case, as amended by the appellees' exceptions, to be certified to this court. Consequently there is no valid case on appeal before us, and the judgment must be affirmed, unless error appears upon the face of the record proper (Lyman v. Ramseur, supra); and, no error appearing thereon, the judgment below is affirmed.