State v. Price

• Decision Date: 26 April 1892
• Parties: STATE v. PRICE et al.
• Court: North Carolina Supreme Court

15 S.E. 116

110 N.C. 599

STATE v. PRICE et al.

Supreme Court of North Carolina

April 26, 1892

Indictment of James W. Price and others. Defendants were convicted, and they appeal. The case comes up on motion of Price for a writ of certiorari. Motion allowed.

The other facts fully appear in the following statement by CLARK J.:

The appellant's counsel agreed in writing that the solicitor should have 15 days within which to serve his counter case or exceptions to appellant's case. On the 15th day the counter case was sent by the solicitor to counsel, who had been employed to assist in the prosecution, who lived in the same town (Monroe) with the defendant's counsel, and it is alleged that the counter case would have been served on the latter that day, within the stipulated time, but defendant's counsel was absent from home that day at Greensboro, and on his return the next day the counter case was served on him. The papers having been sent to the judge, he notified counsel of the time and place of settling the case on appeal. The defendant's counsel did not attend, but wrote to the judge insisting that, the counter case not having been served on him till the day after the expiration of the agreed time, the judge had no power to settle the case, and that the defendant's statement should be sent up as the case on appeal. The judge found the facts as above stated and proceeded to settle the case on appeal, which is in the transcript. The appellant now asks that the judge's statement of the case on appeal be disregarded, and that a writ ofcertiorari issue to the clerk to send up the defendant's statement of the case, to the end that the case in this court should be argued thereon.

MERRIMON C.J., dissenting.

The Attorney General, for the State.

D. A Covington and Batchelor & Devereux, for defendants.

CLARK, J., (after stating the facts.)

If the appellee files no exceptions within the proper time to appellant's case, the latter should be certified to this court, and will be taken here as the case on appeal. Russell v. Davis, 99 N.C. 115, 5 S.E. Rep. 895; Simmons v. Andrews, 106 N.C. 201, 10 S.E. Rep. 1052; Booth v. Ratcliffe, 107 N.C. 6, 12 S.E. Rep. 112; State v. Carlton, 107 N.C. 956, 12 S.E. Rep. 44. This, however, would not apply where the failure to serve the counter case in time was without laches on the part of the appellee. Russell v. Koonce, 102 N.C. 485, 9 S.E Rep. 403; Mitchell v. Haggard, 105 N.C. 173, 10 S.E. Rep. 856; and cases cited in Simmons v. Andrews, supra. The appellee contends that such was the case here, because the counter case was in Monroe, and would have been served in time, but that this was prevented and made impossible by the absence of appellant's counsel. This contention loses sight of the fact that service of the counter case could not be prevented by such absence. Code, § 597, (1,) provides that "notices and other papers" may be served on the attorney, "during his absence from his office, by leaving the paper with his clerk therein, or with a person having charge thereof, or, when there is no person in the office, by leaving it between the hours of six in the morning and nine in the evening, in a conspicuous place in the office, or, if it be not open to admit of such service, then by leaving it at the attorney's residence with some person of suitable age and discretion;" and section 597, (2,) provides for service of papers upon the party himself. Turner v. Holden, 109 N.C. 182, 13 S.E. Rep. 731. Section 597, (4,) provides that this mode of service shall not apply to "a summons or other process, or of any paper to bring a party into contempt." It seems clear, therefore, that it applies to all other papers, including cases and counter cases on appeal. It is reasonable that it should be so, since these must be served within a limited time; and, if the statute did not apply, the service of cases and counter cases would often be delayed or prevented by the temporary absence of the opposite counsel. As the appellee is in default in not having served the counter case within the time limited, the burden was upon him to rebut the presumption of laches. This he has not done, even as to service on defendant's counsel, nor has he shown any reason why the case was not served on the defendant himself, in the absence of his counsel. Had the appellee given the papers in sufficient time to the officer to secure service, and the officer had willfully or negligently failed to serve them, the appellee would not have lost his right, if not guilty of laches, to have service made thereafter, and after the lapse of the prescribed time, if he acted with due diligence. But here there is nothing to excuse the laches in failing to serve the papers by leaving them at the counsel's office or residence, as above provided, or upon the defendant. Indeed, it does not appear that they were handed to an officer at all within the prescribed time. State v. Johnson, 109 N.C. 852, 13 S.E. Rep. 843. In Walker v. Scott, 102 N.C. 487, 9 S.E. Rep. 488, where the facts as to the service of the case on appeal and counter case within the time were in dispute, the court held that the facts in regard thereto should be determined in the court below, and, when that was done, the court here passed upon the law applicable to such state of facts. Walker v. Scott, 104 N.C. 481, 10 S.E. Rep. 523. In the present case these preliminary facts have been found by the judge and appear in the record. Upon them it appears that the appellee's counter case was not served within the time limited, and it has not been shown that such failure was without laches on the part of the appellee. An agreement between counsel to extend time is often convenient, and sometimes almost necessary, for the judge has no power to grant the extension; besides it is better in many ways, and saves debate, that the extension of time, if allowed, should be made by agreement. Such agreements, if in writing...