Simmons v. Andrews

• Decision Date: 17 March 1890
• Citation: 10 S.E. 1052,106 N.C. 201
• Parties: SIMMONS v. ANDREWS et al.
• Court: North Carolina Supreme Court

10 S.E. 1052

106 N.C. 201

SIMMONS v. ANDREWS et al.

Supreme Court of North Carolina

March 17, 1890

Action by F. G. Simmons, as executor of Amos Amyett, against George E. Andrews and others on a promissory note executed in 1864. From a judgment in plaintiff's favor, defendant Heath appeals. Code N.C. § 550, provides that a copy of the statement of the case to be used on appeal shall be served by the appellant "on the respondent within five days from the entry of the appeal taken. Within three days after such service, the respondent shall return the copy with his approval or specific amendments indorsed or attached. *** If returned with objections, as prescribed, the appellant shall immediately request the judge to fix a time and place for settling the case before him."

C. M Busbee and C. Manly, for appellant

S. W Isler, for appellee.

CLARK J.

The appeal in this case was taken at March term, 1889, of Jones superior court. The appellant served his case on appeal, and the appellee his counter-case. Thereupon the statute (Code, § 550) made it the duty of the appellant to "immediately" request the judge to fix a time and place for settling the case. On the contrary, it appears that no application was made by appellant to the judge for that purpose till October 15th,--a delay of nearly seven months. The judge then adopted appellee's case, but added that he did not distinctly remember what had occurred, owing to the long lapse of time before the case had been presented to him. At last term, the court, deeming that this statement was not very satisfactory, remanded the case, that the judge might have an opportunity to make out a more definite statement, if he desired. See ante, 170. To this the judge returns that his memory of the case is too indistinct to say more than he has already done, and adds that retaining cases for so long a time, and then presenting them for the judge to settle the case on appeal, is asking too much.

There are numerous precedents that if the case cannot be settled by the judge by reason of loss of papers, or (prior to the amendatory act) by reason of his having gone out of office or otherwise, a new trial will be granted; and, by analogy the same rule will be adopted where, by the great lapse of time, the judge is unable to settle the case. But, without exception, these cases all contain a proviso that this will not be done unless it is made to appear that the appellant was not guilty of laches. Simonton v. Simonton, 80 N.C. 7; State v. Murray, Id. 364; State v. Fox, 81 N.C. 576; Sanders v. Norris, 82 N.C. 243; State v. O'Kelly, 88 N.C. 609; State v. Randall, Id. 611; Burton v. Green, 94 N.C. 215. The appellant has not made it appear that he was not guilty of laches in delaying for over six months to present the case to the judge to be settled. That, with the multiplicity of matters coming before him, the judge should, after such lapse of time, not retain a very distinct impression of the minutiæ of the trial, is only what might have been expected. To give an appellant a new trial on account of his own laches would be to grant to his delay all that he could have obtained by a successful appeal. Such a precedent cannot safely be set. Non dormientibus, sed vigilantibus, leges subveniunt. There is no evidence of any waiver of time; and, if there had been, the appellant could not be allowed, even by consent, an unlimited time, till all memory of the case shall have faded from the mind of the judge. Causes are not to be won by "masterly inactivity." BYNUM, J., in Wade v. Newbern, 72 N.C. 498, after reciting the rules governing the prosecution of appeals under the Code, says they are reasonable, and "exact no greater degree of vigilance than is required for the deliberate, orderly, and sure administration of justice in the courts. Within certain limits, the parties may by consent waive the time of complying with the rules for perfecting an appeal; and this court will respect such agreements between counsel, if they appear on the record. But, unless they do so appear, this court must respect the provisions of the Code, by adhering to and enforcing the rules there prescribed for the government of...