Opinion
(February Term, 1894.)
Practice — Appeal — Countercase, Service of — Settlement by Judge.
1. Where appellants' case on appeal was served within the time prescribed on the appellee, who thereupon mailed her countercase, with fees, to the sheriff of the county where appellants' counsel resided, and the sheriff, in due course of mail, should have received it in time to serve, but did not take it from the postoffice until too late, no laches can be imputed to the appellee.
2. Where appellants' failure to send appellee's countercase to the judge to settle was caused by the fact that it was served too late, the case will be remanded to the judge for settlement.
APPEAL by defendants, S. L. and J. C. Arrington from a judgment of the Superior Court of VANCE County rendered in an action tried at Fall Term, 1893, before Shuford, J.
R. B. Peebles for appellants.
Battle Mordecai contra.
Let it be conceded that the agreement to extend time to serve case and countercase on appeal applied only if the judgment had been rendered in vacation. The appellants' case on appeal was served on appellee's counsel on 10 June, 1893, within the regulation ten days after adjournment of the term at which the judgment was rendered. On 12 June, 1893, the said statement of case with appellee's exceptions thereto, with copies and fees, was mailed by appellees' counsel to the sheriff of Northampton County, in which appellants' counsel resided, in a registered letter addressed to said sheriff at the county seat. This was the official residence of the sheriff, and in due course of mail he should have received the letter in ample time to have served the papers personally on appellants' counsel or by leaving the same (116) at his office or residence (The Code, sec. 597 (1); S. v. Price, 110 N.C. 599) within the statutory five days. By some chance the sheriff did not take the papers out of the office at Jackson till 17 June. Here there was no laches on the part of the appellee. Yeargin v. Wood, 84 N.C. 326; Walker v. Scott, 104 N.C. 481. Ordinarily, if on receipt of appellee's countercase appellant does not send the case to the judge to settle, he will be taken to have accepted the appellee's modifications of the case. Russell v. Davis, 99 N.C. 115. But here the appellants' failure to do so was caused by their bona fide contention that appellee's exceptions were served too late. Hence the case will be remanded "to be settled by the judge who tried the cause." Russell v. Koonce, 102 N.C. 485; Mitchell v. Haggard, 105 N.C. 173.
Remanded.
Cited: McDaniel v. Scurlock, 115 N.C. 297; Causey v. Snow, 116 N.C. 498; S. v. King, 119 N.C. 910; Stevens v. Smathers, 123 N.C. 499.