Town of Durham v. Richmond & Danville Railroad, 113 N.C. 240 (1893)

Sept. 1893 · Supreme Court of North Carolina

113 N.C. 240

TOWN OF DURHAM v. RICHMOND AND DANVILLE RAILROAD COMPANY et al.

Appeal — Divided Court — Affirmance of Judgment Below.

Where an appeal has been pending for several years, and this Court is evenly divided (one of the Judges not sitting), the'uniform practice of appellate Courts in such cases will be followed, and the judgment below will be affirmed and the appellant required to pa,y the costs,

Civil aution, heard before Winston, J., at September Term, 1891, of Chatham Superior Court.

From the judgment both parties appealed.

Messrs. Batchelor & Devereux, T. B. Womack, W. W. Fuller and J. S. Manning, for plaintiff.

Messrs. D. Schenck, F. FT. Busbee, W. A. Guthrie, J. W. Graham and John Manning, for defendants.

Per Curiam:

In this case both the plaintiff and defendants appealed. Mr. Justice Burwell did not sit, and the Court is evenly divided. The appeals have now been standing on this docket four terras. Under these circumstances, following the uniform practice of appellate Courts in such cases, the judgment below stands, not os a precedent, but as the decision in this case. Marshall, C. J., in Etting v. Bank, 11 Wheat., 59; TaNEY, C. J., in Benton v. Woolsey, 12 Pet., 27, and in Holmes v. Jenison, 14 Peters, 540; Washington v. Stewart, 3 Howard, 413, 424; Chase, C. J., in Reeside v. Reeside, 8 Wall., 302; Durant v. Essex Co., 8 Allen (Mass.), 103; 85 American Dec., 685. The appellauts will respectively pay the costs, each in their own appeal.

Plaintiff’s appeal affirmed.

Defendants’ appeal affirmed.