Rosenthall v. Robertson

• Decision Date: 05 May 1894
• Court: North Carolina Supreme Court
• Parties: ROSENTHALL v. ROBERTSON.

19 S.E. 667

114 N.C. 594

ROSENTHALL

v.ROBERTSON.

Supreme Court of North Carolina.

May 5, 1894.

Appeal—Record—Nonsuit.

1. Where there is no case on appeal, and no errors appear upon the face of the record proper, the judgment should be affirmed.

2. Where plaintiff submits to a nonsuit at the trial, but no judgment for costs is entered against him, no appeal lies.

Appeal from superior court, Henderson county; Mclver, Judge. Action by G. Rosentball against J. D. Rob-ertson, administrator of the estate of W. A. Fanning, deceased. Plaintiff was nonsuited, and he appeals. Dismissed.

Busbee & Busbee, for appellant.

W. A. Smith and T. J. Rickman, for appellee.

CLARK, J. The record states: "Plaintiff allowed twenty days to prepare case on appeal, and defendant twenty days thereafter to accept plaintiff's statement of case on appeal, or prepare his statement" The time within which a case and counter case on appeal must be served is prescribed and limited by statute. Act 1889, c. 161, amending Code, § 550. The courts have no power to disregard the statute, and prescribe a different period, by extending the time. State v. Price, 110 N. C. 599, 15 S. E, 116. The parties, however, can consent to an extension of time. This, if admitted or made in writing, or entered on the docket (which latter Is the better course), will be recognized as valid by the court. State v. Price, supra, and cases there cited. We take it, therefore, that in the present case the extension of time was in fact not made by the court, but was simply an agreement of the parties entered on the minutes. The time allowed, whether by statute or consent, for service of the case on appeal, is to be counted, not from the last day of the two weeks during which the term of the court could have been held, but is to be computed from the day of the actual adjournment of the court Tur-rentine v. Railroad Co., 92 N. C. 642; Walker v. Scott, 104 N. C. 481, 10 S. B. 523. The day of the actual adjournment of court does not appear upon the record. Counting, therefore, from the last day upon which the term could have been held, —Saturday of the second week, which was December 10, 1893, —the 20 days upon which, by consent, service could have been made, expired December 30th. The attempted service upon January 4th was a nullity, and must be disregarded. Peebles v. Braswell, 107 N. C. 68, 12 S. E. 44; Cumming v. Hoffman, 113 N. C. 267, 18 S. E. 170. The absence of case on appeal is not ground for a motion to dismiss, but the judgment will be affirmed if there are no errors upon the face of the record proper. Cumming v. Hoffman, supra; Lyman v. Ramseur, 113 N. C. 503, 18 S. E. 690. As the appellant is a plaintiff who has submitted to a nonsuit and appealed, there can be no errors in the record proper which could avail him. Upon the submission by plaintiff to a nonsuit, judgment should have been entered against him for costs. This was not done. No judgment having been entered below, the...