State v. Crowder

• Decision Date: 21 March 1928
• Docket Number: 75.
• Citation: 142 S.E. 222,195 N.C. 335
• Parties: STATE v. CROWDER.
• Court: North Carolina Supreme Court

142 S.E. 222

195 N.C. 335

STATE v. CROWDER.

No. 75.

Supreme Court of North Carolina

March 21, 1928

Appeal from Superior Court, Vance County; Nunn, Judge.

R. B Crowder was convicted of an offense, and he appeals. Appeal dismissed.

Trial judge's order, made out of district without notice to parties extending time for filing statement of case on appeal, held void.

Thomas M. Pittman, R. S. McCoin, and D. P. McDuffee, all of Henderson, and Yarborough & Yarborough, of Louisburg, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

BROGDEN J.

The defendant was tried and convicted, and judgment pronounced on the 16th day of October, 1927, and thereupon court adjourned. The defendant was allowed 45 days in which to serve his case on appeal, and the state 30 days thereafter to serve counter statement or exceptions The record was voluminous. After the adjournment of court, counsel for the defendant notified the court stenographer to prepare the transcript of evidence. The stenographer did not live in Henderson where the trial was had. The letter of counsel, notifying her to transcribe the evidence, through inadvertence, was put in the mail box of another person, causing a delay of 10 days before the receipt thereof by the court stenographer. Thereafter, while engaged in transcribing the evidence, the stenographer suffered a severe cut on her right hand, which became infected, and resulted in depriving her of the use of her right arm for several days. Fearing that she would not be able to transcribe the evidence in time, of her own motion, she notified the judge who tried the case and who was then in another district. Without notice to the parties, the trial judge sent an order on November 12th enlarging the time for preparing statement of case on appeal for 30 days beyond the time fixed in the order of court at the time of the trial. The solicitor for the state, on the 17th of November excepted to said order enlarging the time, and, on the 18th day of November, served notice on the defendant that the state excepted to the order granting an extension of time for serving the case on appeal. The statement of case on appeal was served on the solicitor on December 29, 1927. The solicitor filed exceptions. Thereafter, upon disagreement of counsel, the judge settled the case on appeal on January 20, 1928. When the case was called for argument in this court, the state made a motion to dismiss the appeal. This motion must be granted, and the appeal must be dismissed. The order of the trial judge, made out of the district, and without notice to the parties, extending the time for filing the statement of case on appeal, was void. Cox v. Boyden, 167 N.C. 321, 83 S.E. 246; State v. Humphrey, 186 N.C. 533, 120 S.E. 85; State v. Taylor, 194 N.C. 738, 140 S.E. 728. Bisanar v. Suttlemyre, 193 N.C. 712, 138 S.E. 1. Indeed, the trial judge in transmitting the order expressed grave doubt as to its efficacy.

The rules governing appeals are mandatory and not directory. Thus in Womble v. Gin Co., 194 N.C. 577, 140 S.E. 230, the court says:

"The rules governing appeals are mandatory and not directory. Calvert v. Carstarphen, 133 N.C. 25, 45 S.E. 353. They may not be waived or abrogated: (1) By act of the Legislature (Cooper v. Board of Com'rs, 184 N.C. 615, 113 S.E. 569); (2) by order of the judge of the superior court (Waller v.

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