Houston v. Lumber Co., 136 N.C. 328 (1904)

Nov. 1, 1904 · Supreme Court of North Carolina

136 N.C. 328

HOUSTON v. LUMBER CO.

(Filed November 1, 1904).

1. APPEAL — Notice—The Code, sec. 549

A party to an action may appeal by serving notice thereof within ten days after the adjournment of court.

2. APPEAL — Appearances.

The entry of a special appearance does not authorize counsel so appearing to appeal from a judgment.

3. APPEAL — Judgment Toy Default.

An appeal by counsel, “appearing specially,” from a judgment by default is premature.

ActioN by B. N. Houston against tbe Greensboro Lumber Company and J. T. B. Shaw, receiver, beard by Judge O. M. Co olee, at January Term, 1904, of the Superior Court of Dubham County. From a judgment for the plaintiff the defendant lumber company appealed.

J. C. Biggs and Boone & Beade, for the plaintiff.

Winston & Bryant and J. A. Barringer, for the defendant lumber company.

Clark, C. J.

The summons issued against the “Greensboro Lumber Co. and J. T. B. Shaw, receiver.” It was served upon “J. T. B. Shaw, receiver of the Greensboro /Lumber Company.” The action was dismissed as to the receiver on demurrer because leave of Court had not been obtained to bring action against the receiver.. There was no answer or demurrer filed as to the company and judgment against it was taken by default and inquiry. After the adjournment for the term, but within ten days thereafter, the defendant entered a special appearance and gave notice of appeal.

A party to an action can take bis appeal by serving notice witbin ten days after adjournment of Court. The Code, sec. 549; Russell v. Hearne, 113 N. C., 361; Davison v. Land Co., 120 N. C., 259. But tbe appeal must be taken by a party to tbe action, and tbe entry of a special jippearance did not authorize counsel so appearing to appeal. An appeal by counsel “appearing specially” is no appeal. Clark v. Mfg. Co., 110 N. C., 111.

Tbe appeal, even if it bad been regularly taken, was premature. If not duly served witb process, tbe defendant “could either have disregarded tbe further proceedings of tbe Court, which would have been a nullity, or it could have bad its exception noted and proceeded witb tbe trial.” Guilford v. Georgia Co., 109 N. C., 312; Mullen v. Canal Co., 112 N. C., 109, and numerous cases cited in Clark’s Code (3 Ed.), p. 738; Brown v. Nimocks, 126 N. C., 808; Cooper v. Wyman, 122 N. C., 784, 65 Am. St. Rep., 731.

Appeal Dismissed.