Arrington v. . Arrington , 114 N.C. 113 ( 1894 )

The judgment was rendered at a term of court which adjourned 3 June, 1893. On 8 June, 1893, counsel for appellant, Nancy Bunn, caused notice of appeal to be entered, and mailed from Rocky Mount, by registered letter, notice of appeal and statement of case on appeal, with copies and fees for service, to the sheriff (114) of Northampton County, at Jackson, the county seat. The appellees' counsel resided in that town and there was ample time to have served the papers before the expiration of the ten days, "which, excluding the first day and including the last" (The Code, sec. 596); would have expired 13 June at midnight. The ten days is to be computed not from the day judgment was rendered, but from 3 June, the day on which court actually adjourned. Turrentine v. R. R., 92 N.C. 642; Walker v. Scott,104 N.C. 481; Chamblee v. Baker, 95 N.C. 98; Worthy v. Brady, 91 N.C. 265. The appellant was guilty of no laches. The letter was properly addressed to the sheriff at the county seat. Yeargin v. Wood, 84 N.C. 326. It was not the neglect of appellant that the sheriff to whom the letter was addressed did not take it out of the office till 17 June.

If the facts were controverted the case might be remanded to the judge below to find the facts, but being undenied it is clear that no laches is imputable to appellant. The case is remanded to the Superior Court of Vance County. Following the precedent in Walker v. Scott, 104 N.C. 481, the appellees will be allowed five days after the certificate of this opinion is filed in the office of the clerk of the Superior Court of said county, to file their exceptions, should they desire to do so, to the appellant's case on appeal nunc pro tunc, and if the parties cannot agree upon a statement of the case it will be settled by his Honor who tried the case (Judge Shuford), under the requirements of The Code, sec. 550.

Remanded.

Cited: Causey v. Snow, 116 N.C. 498.

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