Simmons v. Allison

• Citation: 119 N.C. 556,26 S.E. 171
• Court: North Carolina Supreme Court
• Decision Date: 22 December 1896
• Parties: SIMMONS et al. v. ALLISON et al.

26 S.E. 171

119 N.C. 556

SIMMONS et al.

v.ALLISON et al.

Supreme Court of North Carolina.

Dec. 22, 1896.

Appeal—Requisites—Entry—Costs—Record.

1. The failure of the clerk to make entry of the appeal is not ground for dismissal.

2. The court, in its discretion, may tax against either party, as costs, the receiver's fees.

3. On second appeal, the formal recitals, and the proceedings subsequent to the filing of the opinion on reversal, and the exceptions, only need appear in the record.

4. In an equitable proceeding to determine control of church property, where a decree is rendered for plaintiffs, and defendants are not in possession, it is error to assess damages against them in the nature of mesne profits.

Appeal from superior court, Mecklenburg county; Bryan, Judge.

Action by R. H. Simmons and others against Alexander Allison and others. From a judgment for plaintiffs, defendants appeal. Error. Modified.

Maxwell & Keerans and Clarkson & Duls. for appellants.

Burwell, Walker & Cansler, for appellees.

CLARK, J. The motion of the appellees to dismiss must be denied as to both grounds. The notice of appeal and entry thereof on the docket having both been made within the 10 days after adjournment, it is immaterial that the entry was made after notice given. Indeed, if the notice of the appeal is admitted or shown to have been given in time, it would avail nothing if the entry was not made at all, for it is only made as record proof. Fore v. Railroad Co., 101 N. C. 526, 8 S. E. 335; Atkinson v. Railroad Co., 113 N. C. 581, 18 S. E. 254. The Code system exacts businesslike diligence, that the rights of the opposite party may be respected, but it did not destroy the former system, based largely on mere technicalities, merely to substitute another set of technicalities and fine distinctions. McDaniel v. Scurlock, 115 N. C. 295, 20 S. E. 451. The object of the new system is, as far as possible, to conform to the common-sense rules of business life, by requiring diligence in the trial of causes, trying them on their merits, and disregarding mere technical objections. As to the second ground of the motion, the sole question being whether thejudgment entered below, since our decision in 118 N. C. 763, 24 S. E. 716, was in conformity with that opinion, it was eminently proper that the transcript on this appeal should not be incumbered with any part of the record other than the formal recitals usual and necessary to show that the court was properly constituted and held, adding thereto the proceedings had subsequent to our opinion being filed below, and the exceptions made to such subsequent proceedings. Durham v. Railroad Co., 108 N. C. 399, 12 S. E. 1040, and 13 S. E. 1; Silver Valley Min. Co. v. North Carolina Smelting Co. (at this term) 26 S. E. 27. Indeed, the appellant, out of abundant caution, sent up and also printed the opinion of this court (118 N. C. 763, 24 S. E. 716), which was an entirely unnecessary expense.

The first exception is overruled, for, as the fund in the hands of the receiver is to be paid over to the plaintiffs, it cannot concern the defendants in what manner it should be divided among the plaintiffs. The Code provides (section 424, subsec. 1) that the judgment "may determine the ultimate rights of the parties on each side among...