Summary
In McNeill v. R. R., 117 N.C. 642, 23 S.E. 268, the service of a case on appeal was held ineffectual because not made by a proper officer within the prescribed time.
Summary of this case from In re Appeal of HarrisOpinion
(September Term, 1895.)
Practice — Appeal — Case on Appeal — Service.
1. Where a case on appeal is served by an improper officer within the time or by a proper officer after the time limited for its service, it will not be considered.
2. The failure of service of case on appeal within the time limited cannot be cured by the Judge settling the case.
ACTION tried before Hoke, J., and a jury, at August Term, 1895, of MOORE, to recover damages for killing plaintiff's cow through negligence of defendant. There was verdict for the plaintiff, and defendant appealed from the judgment thereon.
It appears from the record that the defendant's case on appeal was filed with the Clerk of the Superior Court and handed him by counsel for plaintiff within the time prescribed, and was served by the (643) Sheriff after the time for service had expired. In this Court plaintiff's counsel moved that the statement of case on appeal be not considered and that the judgment be affirmed.
Black Adams and W. H. McNeill for plaintiff.
Robert C. Strong for defendant.
Notice of appeal was properly given and in apt time, hence a motion to dismiss the appeal would not lie, and in fact was not made. The appellant's case on appeal, unless service was accepted, could only be served by an officer. Forte v. Boone, 114 N.C. 176; Allen v. Strickland, 100 N.C. 225; S. v. Johnson, 109 N.C. 852; S. v. Price, 110 N.C. 599. The failure of service in due time, if it were made to appear, could not be cured even by the Judge settling the case ( Forte v. Boone, supra) and when the case is not settled by the Judge, it must appear affirmatively that the case or counter case was legally served and in due time to avail the party relying upon it. Mfg. Co. v. Simmons, 97 N.C. 89; Peebles v. Braswell, 107 N.C. 68; Howell v. Jones, 109 N.C. 102. The attempted service by the Clerk was a nullity ( Cummings v. Hoffman, 113 N.C. 267) as was also the service by a proper officer after the time limited by law. Rosenthal v. Roberson, 114 N.C. 594; Cummings v. Hoffman, supra. Had there been counter affidavits that in fact there had been service by a proper officer in due time, the case might be continued that, on motion below, the Judge should find and certify the facts, as in Walker v. Scott, 102 N.C. 487. Such is not the case here, but simply an attempted service within the proper time by one not authorized to make it, and then service by a proper officer, but (644) after the time limited for service had expired. Both these acts being null and of no effect, and there being nothing to excuse the laches, as in Watkins v. R. R., 116 N.C. 961, there is nothing before us except the record proper. On inspection we find no error therein and must affirm the judgment. Lyman v. Ramseur, 113 N.C. 503.
Affirmed.
Cited: Smith v. Smith 119 N.C. 317; Westbrooks v. Hicks, 121 N.C. 132; Barnes v. R. R., ib., 505; Cowan v. Lumber Co., 126 N.C. 1153; Barber v. Justice, 138 N.C. 22.