Zell Guano Co v. Hicks

• Decision Date: 23 February 1897
• Citation: 120 N.C. 29,26 S.E. 650
• Court: North Carolina Supreme Court
• Parties: ZELL GUANO CO. v. HICKS.

26 S.E. 650

120 N.C. 29

ZELL GUANO CO.

v.HICKS.

Supreme Court of North Carolina.

Feb. 23, 1897.

Appeal—Time to Serve Case —Certiorari to Bring Up Case.

1. Where 30 days was allowed by agreement within which to serve a case on appeal, and the court adjourned on October 31st, the time for service expired on November 30th, the last day not being Sunday, and a service on December 1st was a nullity.

2. Certiorari to bring up a "case on appeal" can only be granted where a transcript of the record proper has been filed, and leave to file such transcript will not be given after a petition for the writ has been filed and argued, where it would be unavailing because the right of appeal has been lost by a failure to serve the case in time.

Petition by the defendant for writ of certiorari to bring up the "case on appeal, " in an action by Zell Guano Company against P. T. Hicks. Petition denied.

R. B. Peebles and MacRae & Day, for petitioner.

R. O. Burton, for respondent

CLARK, J. The time in which to serve "the case on appeal" must be counted from the actual adjournment of the court. Rosenthal v. Roberson, 114 N. C. 594, 19 S. E. 667; Delafield v. Construction Co., 115 N. C. 21, 20 S. E. 167; Worthy v. Brady, 91 N. C. 265; Turrentine v. Railroad Co., 92 N. C. 642; Chamblee v. Baker, 95 N. C. 98; Walker v. Scott, 104 N. C. 481, 10 S. E. 523. The court having adjourned on October 31st, the "30 days" agreed upon in lieu of the statutory 10 days, in which to serve the case on appeal, expired on November 30th (the last day not being Sunday). Code, § 596; Barcroft v. Roberts, 92 N. C. 249. The attempted service, therefore, upon December 1st, was too late, and was a nullity. Peebles v. Braswell, 107 N. C. 68, 12 S. E. 44; Cummings v. Hoffman, 113 N. C. 267, 18 S. E. 170. It may seem a hardship that a party shall lose his appeal by being one day too late, but this is not comparable to the confusion which would be brought about by not adhering to the time fixed by statute, or the time agreed upon by parties in lieu thereof. Every case in which there was a failure to observe the time specified would become the subject of controversy, with affidavits and counter affidavits, and with a wonderful increase in the number of such cases. In the present case the appellee gave, by consent, 20 days more time than the statute allowed, and we have no power to add another day against the appellee's will. "Vigilantibus non dormientibus leges subveniunt." The petitioner failed to file a transcript of the record proper, and without doing so he is in no condition to ask for a writ of certiorari to bring up the "case on appeal." Brown v. House, 119 N. C. —, 26 S. E. 160; Shober v. Wheeler, 119 N. C. —, 26 S. E. 26; Owens v. Phelps, 91 N. C. 253; Pittman v. Kimberly, 92 N. C. 562; Bailey v. Brown, 105 N. C. 127, 10 S. E. 1054; Stephens v. Koonce, 106 N....