Rosenthal v. . Roberson , 114 N.C. 594 ( 1894 )

The defendant, after denying in his answer that his intestate's estate was in any wise liable to plaintiff, for a further defense said that he had no notice whatever of any alleged judgment against his intestate in favor of plaintiff until the bringing of this action, and denied that there. was any judgment or other liability in favor of the plaintiff against the defendant or his intestate's estate.

Upon the trial before McIver, J., and a jury, at Fall Term, 1893, of Henderson Superior Court, his Honor, after hearing the complaint and answer, intimated that the plaintiff could not recover, and in deference to this opinion the plaintiff took and nonsuit and appealed. The record states: "plaintiff allowed twenty days to prepare case on appeal, and defendant twenty days thereafter to accept plaintiff's statement of case on appeal or prepare his statement." The time within which a case and countercase on appeal must be served is prescribed and limited by statute. Acts 1889, ch. 161, amending the Code, sec. 550. The courts have no power to disregard the statute and prescribed a different period by extending the time. S. v. Price,110 N.C. 599. The parties, however, can consent to an extension of time. This, if admitted or made in writing or entered on the docket (which latter is the better course), will be recognized as valid by the (596) court. S. v. Price, supra, and cases there cited.

We take it, therefore, that in the present case the extension of time was in fact not made by the court, but was simply an agreement of the parties entered on the minutes. The time allowed, whether by statute or consent, for service of the case on appeal is to be counted not from the last day of the two weeks during which the term of the court could have been held, but is to be computed from the day of the actual adjournment of the court. Turrentine v. R. R., 92 N.C. 642; Walker v. Scott, 104 N.C. 481. The day of the actual adjournment of court does not appear upon the record. Counting, therefore, from the last day upon which the term could have been held, Saturday of the second week, which was 10 December, 1893, the twenty days upon which, by consent, service could have been made expired 30 December. The attempted service upon 4 January was nullity and must be disregarded. Peebles v. Braswell, 107 N.C. 68; Cummings v.Hoffman, 113 N.C. 267; The absence of case on appeal is not ground for a motion to dismiss, but the judgment will be affirmed if there are no errors upon the face of the record proper. Cummings v. Hoffman, supra; Lyman v.Ramseur, 113, N.C. 503. As the appellant is a plaintiff who has submitted to a nonsuit and appealed there can be no errors in the record proper which could avail him. Upon the submission by plaintiff to a nonsuit judgment should have been entered against him for costs. This was not done. No judgment having been entered below, the appeal must be dismissed. Taylor v. Bostic, 93 N.C. 415, and other cases Cited: Clark's Code, 2d Ed., 559. It is true, if it appeared that the omission of the judgment is a mere inadvertence and the appellant has merits, the court would remand the case to supply the judgment instead of dismissing the appeal. Baum v. Shooting Club, 94 N.C. 217.

As further action will probably be taken it is proper to say that the summons having been served upon W. A. Fanning, (597) named in the summons, the fact that the judgment was entered up against "W. H. Fanning" does not necessarily vitiate and render it void. The appellant may consider whether he should not take proceedings by a motion in the cause to correct the judgment. See cases collected in Clark's Code (2 Ed.), 645-648. The correction of a mistake in the name of a party after judgment is expressly allowed by The Code, sec. 273. Such amendment may be made at any time and does not come within the limitation of "one year after notice thereof" prescribed by section 274.

This action, having been brought in another county, cannot be treated as a motion in the cause, as was done in Jarman v. Saunders, 64 N.C. 367.

Appeal dismissed.

Cited: Delafield v. Construction Co., 115 N.C. 23; McNeill v. R. R.,117 N.C. 643; Carter v. Elmore, 119 N.C. 297; Guano Co v. Hicks,120 N.C. 29; S. v. Crook, 132 N.C. 1058; Chambers v. R. R., 172 N.C. 556;Craddock v. Brinkley, 177 N.C. 127; Crawford v. Allen, 180 N.C. 246.