Waller v. Dudley

• Decision Date: 16 March 1927
• Docket Number: 215.
• Parties: WALLER et al. v. DUDLEY.
• Court: North Carolina Supreme Court

137 S.E. 149

193 N.C. 354

WALLER et al. v. DUDLEY.

No. 215.

Supreme Court of North Carolina

March 16, 1927

Action by E. H. Waller and another against C. A. Dudley, Jr. From a judgment for plaintiffs, defendant appeals. Application by defendant for certiorari on the ground that the case on appeal had not yet been settled. Certiorari disallowed.

Court rules governing appeals are mandatory.

Shaw & Jones, of Kenston, for defendant.

STACY C.J.

This was an action in trespass to recover damages for an alleged wrongful cutting of plaintiffs' timber. A question of boundary being involved, the cause was referred under the statute to Hon. D. M. Clark, who found the facts and reported same, together with his conclusions of law, to the court. In said report, the dividing line between the lands of the plaintiffs and the defendant was established and the plaintiffs awarded $796 as damages for the wrongful cutting of their timber by the defendant. On exceptions duly filed and demand for a jury trial, issues were submitted at the November term, 1926 (which convened November 9th and continued for two weeks), Lenoir superior court, Hon. W. A Devin, judge presiding, and answered as follows:

"1. Did the defendant trespass upon the lands of the plaintiffs and cut and remove therefrom cordwood and timber trees as alleged? Answer: Yes.

2. If so, what damages, if any, are plaintiffs entitled to recover? Answer: $450."

From a judgment on the verdict in favor of plaintiffs, the defendant gave notice of appeal to the Supreme Court. By consent of counsel and by order duly entered in the cause, the defendant was allowed 60 days within which to prepare and serve statement of case on appeal, and the plaintiffs were allowed 60 days thereafter to file exceptions or counter statement of case. This application for certiorari was made March 8, 1927 for the reason "that said case on appeal has not yet been settled."

The defendant served his statement of case on appeal January 19, 1927, and it does not appear that the plaintiffs have filed any exceptions or counterstatement of case, the time for doing so not having expired when the motion for certiorari was made in this court. There is nothing on the record to suggest the necessity of any unusual time in preparing the case on appeal.

Under our settled rules of procedure, an appeal from a judgment rendered prior to the commencement of a term of the Supreme Court must be brought to the next succeeding term; and, to provide for a hearing in regular order, it is required that the same shall be docketed here 14 days before entering upon the call of the district to which it belongs, with the proviso that appeals in civil cases from the First, Second, Third, and Fourth districts, tried between the 1st day of January and the first Monday in February, or between the 1st day of August and the fourth Monday in August, are not required to be docketed at the immediately succeeding term of this court, though if docketed in time for hearing at said first term, the appeal will stand regularly for argument. Rule 5, vol. 192, p. ___.

We again call the attention of the profession to the fact that the rules governing appeals are mandatory and not directory. The court has not only found it necessary to adopt them, but equally necessary to enforce them and to enforce them uniformly. Finch v. Com'rs, 190 N.C. 154, 129...