West v. F. W. Woolworth Co, 99.

• Decision Date: 28 September 1938
• Docket Number: No. 99.,99.
• Citation: 198 S.E. 659,214 N.C. 214
• Court: North Carolina Supreme Court
• Parties: WEST. v. F. W. WOOLWORTH CO. et al.

198 S.E. 659

214 N.C. 214

WEST.

v.F. W. WOOLWORTH CO. et al.

No. 99.

Supreme Court of North Carolina.

Sept. 28, 1938.

Appeal from Superior Court, Buncombe County; Felix E. Alley, Judge.

Action by James West, by his next friend, W. C. West, against F. W. Wool-worth Company and Robert E. Anthony to recover for an alleged slander. Judgment for plaintiff against the last named defendant, and plaintiff appealed to the superior court, where appeal was dismissed, and from a subsequent order reinstating the appeal, the first named defendant appeals.

Affirmed.

Civil action for recovery of damage for alleged slander.

The action was instituted in the General County Court of Buncombe County. On the trial at January Term, 1938, of said Court there was verdict in favor of the plaintiff against the defendant, Robert E. Anthony, but the jury found that at the time of the alleged slander he was not "acting within the course and scope of his authority" as assistant manager for defendant, F. W. Woolworth Company. Motion of plaintiff to set aside the verdict as to the issue of agency and for new trial thereon was denied. From judgment on the verdict plaintiff appealed to the Superior Court and assigned error.

At the June Term, 1938, of the Superior Court, on motion of defendant, F. W. Woolworth Company, and, upon findings of fact to the effect that plaintiff had failed to comply with the statutory requirements and rules of the court governing the docketing and perfecting of appeals from the General County Court to the Superior Court in the respects therein set forth, an order was entered dismissing the appeal of plaintiff and affirming the judgment of the General County Court. Thereupon, at the same term of the Superior Court, in open court and on the day that the order dismissing the appeal was signed, plaintiff filed a motion to vacate the said order and for reinstatement of the appeal for causes stated, notice of which was given to counsel for defendant.

The motion to reinstate the appeal being heard on July 1, 1938, at and during thenext succeeding term of the Superior Court, the regular 2-week June, 1938, mixed term, which convened on the 20th of June, and which was presided over by the judge regularly assigned to hold the Spring terms, 1938, of the Superior Court of Buncombe County, the Court upon further facts found and "in the exercise of its discretion and in the furtherance of justice" entered an order that the plaintiff's appeal to the Superior Court be reinstated, from which defendant, F. W. Woolworth Company, appealed to the Supreme Court, and assigns error.

Parker, Bernard & Parker, of Asheville, for appellant.

Pritchard & James, of Asheville, for appellee.

WINBORNE, Justice.

The questions presented are: (1) Does the Judge of Superior Court, after having dismissed an appeal from the General County Court, have the authority, on motion of appellant made at the same term, to reinstate the appeal when the motion is not heard until the next succeeding term?

(2) When a regular spring term of Superior Court of a county begins in June and runs into July, does the presiding judge regularly assigned to hold the courts of the district in which such county is situated for the spring circuit, have authority during such term to act as such after the month of June has expired? Both questions are answered "Yes".

(1) The General County Court of Buncombe County was established in 1929 pursuant to the provisions of Chap. 159 of Public Laws of 1929 which brought Buncombe County under and within the operation of the general statutes on the subject. Public Laws 1923, Chap. 216, as amended by Public Laws, Extra Session 1924, Chap. 85; Jones v. Standard Oil Co., 202 N.C. 328, 162 S.E. 741; Grogg v. Graybeal, 209 N.C. 575, 184 S.E. 85. The general statute...