Burlingham v. . Canady , 156 N.C. 177 ( 1911 )

The facts are sufficiently stated in the opinion of the Court by Mr.Justice Walker. The defendants in this case appealed to this Court from a verdict and judgment rendered against them in the court below, and served their case on appeal upon the plaintiffs. The plaintiffs, disagreeing to this case, prepared a counter-case and caused the same to be duly served upon the defendant's counsel by the sheriff, who made a return to that effect. Both cases were then filed in the clerk's office. Plaintiff's counsel moved in this Court to affirm the judgment, as no case on appeal had been sent to this Court, though the record proper is here, the motion being based upon the ground that counsel disagreed to the case, and the judge was not requested, as required by Revisal, sec. 591, to settle the case, and that no case on appeal has actually been settled. Defendant's counsel filed an affidavit, in which he denied positively that any countercase or exceptions had been served upon him or the defendants, and that he inquired of the clerk, who told him that no such case or exceptions had been filed in his office. This is the only affidavit introduced in behalf of the defendants. Plaintiffs filed the affidavits of Mr. Frank Thompson, one of their attorneys, and the sheriff, E. W. Summerville, who state that the counter-case was served upon the defendant's counsel on 14 June, 1911, and the sheriff's return also shows that such service was made by him. M. M. Capps, the clerk, testifies that (179) the counter-case was filed in his office, and he thought that it was sent up with the record to this Court, and that the statement to the contrary in his certificate is an error which he inadvertently committed, as the record for this Court was prepared by the defendant's attorneys, at their request, and was presented to him for his signature to the certificate, and he supposed, of course, that the record was in proper form and contained the counter-case on appeal, and he so stated to Mr. Frank Thompson, defendant's attorney, afterwards.

The record here does not contain the counter-case, but only the case as tendered by the defendants to the plaintiffs. Under the circumstances, we must grant the plaintiff's motion and affirm, as we discover no error in the record proper.

The sheriff's return imports truth. It is made under oath and cannot be overthrown or shown to be false by the affidavit, merely, of the person upon whom the service is alleged to have been made. It has often been held that the return of a ministerial officer, as to what he has done out of court, is prima facie true, and cannot be contradicted by a single affidavit. Hunter v. Kirk, 11 N.C. 277; Mason v. Miles, 63 N.C. 564. It would be oath against oath, and we could not well say with whom was the truth. Besides, the service of process or other papers, and the return thereof, are very serious matters, and should not be lightly set aside. In this case, though, the sheriff's return is strongly corroborated by the affidavits of Mr. Thompson, the clerk, and the officer himself, and if no technical force or weight is to be given to the return, we would be bound by the decided weight of the evidence to find against the defendants as to the fact of service. As the countercase was properly served, it was the duty of the defendants to immediately request the judge to appoint a time and place to settle the case under Revisal, sec. 591, and upon his failure to comply with this requirement of the statute the case of the appellee became the case on appeal. As that case has not been certified to this Court, as part of the transcript, and therefore has not been printed, we affirm the judgment.

Affirmed.

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