Standard Mirror Co. v. Philadelphia Casualty Co., 157 N.C. 28 (1911)

Nov. 9, 1911 · Supreme Court of North Carolina

157 N.C. 28

STANDARD MIRROR COMPANY v. PHILADELPHIA CASUALTY COMPANY.

(Filed 9 November, 1911.)

1. Appeal and Error — Failure to Docket — Motion to Dismiss — Practice.

A motion to dismiss an appeal in tbe Supreme Court for failure of appellant to docket in the time required is in apt time when it is made during the term of Court to which the appeal is returnable, and before the case is docketed. Supreme Court Rule 17.

2. Same.

When the appellant dockets his case on appeal in the Supreme Court at any time after the end of the term to which it is returnable, it will be dismissed, on motion.

3. Same — Motion to Reinstate.

An appellant is required by Rule 17 of the Supreme Court to move for a reinstatement of his case, after its dismissal upon motion of appellee, during the same term of the Court.

4. Appeal and Error — Appeal Abandoned — Motion to Dismiss — Practice.

When it appeared from the record on file in the Supreme Court, that the appellant had abandoned his appeal below, no motion to dismiss was necessary, and it will therefore be disallowed.

5. Appeal and Error — Service of Case — Extension of Time — Agreement in Writing — Practice.

When it appears in the Supreme Court that appellant has not served his case on appeal in time, no agreement for further extension thereof will be considered, unless it is in writing or appears by an entry on the record. Supreme Court Rule 39.

6. Appeal and Error — Service of Case — Extension of Time — Attorney and Client — Directions.

An attorney for appellee has no authority to extend the time for the appellant’s attorney to serve his case on appeal when he has been forbidden by his client to do so.

7. Appeal and Error — Service of Case — Returns of Officer — Affidavit — Corrections.

In this case it was proven by the affidavit of the officer that though by his return upon the original statement of case on appeal by appellant it appears that the case was served on a certain date and in time, it was not in fact served until after the expiration of the time allowed or extended by agreement, and appellee’s motion to dismiss is allowed. Officers serving papers are cautioned to make accurate returns, as, in law, they import verity and are prima 'facie evidence of their correctness.

Appeal from Daniels, J., at August Term, 1911, of Guilfoed.

Wescott Roberson and King & Kimball for plaintiff.

Stem & Stern and Walser & Walser for defendant.

plaintiff’s appeal.

Walker, J.

Tbe above-entitled action was tried at February Term, 1911, of Guilford Superior Court, and both parties appealed from tbe judgment therein. Tbe plaintiff failed to docket its appeal at this term of Court, as it was required to do, and tbe defendant moved to dismiss tbe appeal under Rule 17. Tbe motion of tbe defendant would be granted but for tbe fact tbat plaintiff bad abandoned tbe appeal below. Rule 17 (140 N. C., 493) provides tbat sucb a motion shall be made during tbe term of this Court to which tbe appeal is returnable, and not after said term; so tbat tbe defendant moved in apt time. Even tbe appellant is required by tbe rule to move for a reinstatement of bis appeal at tbat term. Not only is tbat tbe requirement of tbe rule, but it bas been so construed to be its meaning in several of our decisions.’ Benedict v. Jones, 131 N. C., 473; Graham v. Edwards, 114 N. C., 228. Tbe practice in sucb cases as arise under tbis rule of tbe Court is fully stated by tbe present Chief Justice in Porter v. R. R., 106 N. C., 478, wbicli was followed by Hinton v. Pritchard, 108 N. C., 412; Paine v. Cureton, 114 N. C., 606; Causey v. Snow, 116 N. C., 498, and numerous other cases cited in tbe note to Porter v. R. R., at marg. p. 480 of tbe anno, edition of 106 N. C. Tbe change in tbe time prescribed by tbe Rules for docketing transcripts in tbis Court bas not bad tbe effect of altering tbe requirement in regard to motions of appellees to dismiss under Rule 17, as was decided in Benedict v. Jones, supra. If tbe appellant should docket tbe case before a motion is made by tbe appellee to dismiss, it will defeat sucb a motion, but tbe latter may move in tbe matter during tbe return term of tbe appeal at any time after tbe case should be docketed here. If tbe appellant should docket bis appeal at any time after the end of said term of tbis Court, it will also be dismissed on motion. Benedict v. Jones, supra; Causey v. Snow, supra; Burrell v. Hughes, 120 N. C., 277; S. v. James, 108 N. C., 792. It follows tbat, while tbe appellee in tbe plaintiff’s appeal bas come into tbis Court in time to avail itself of tbe right given by Rule 17 to dismiss, tbe motion is, nevertheless, denied, tbe plaintiff having abandoned its appeal, as appears from tbe papers on file here, and no motion to dismiss being really necessary.

Motion denied.

DEFENDANT’S APPEAL.

Waleer, J.

This is a motion to dismiss tbe appeal or to affirm tbe judgment below in favor of tbe plaintiff, because tbe defendant did not prepare and serve its case on appeal in time. It appears tbat, by consent of tbe appellee, tbe plaintiff, it was allowed thirty days after tbe adjournment of tbe court on 26 February, 1911, to serve tbe case on appeal, but it was not served witbin tbe extended period. An unfortunate dispute between counsel as to an alleged further extension of time, by agreement between defendant’s and one of appellee’s (plaintiff’s) counsel, bas brought into this Court a disagreeable controversy, which, we have said more than once before, we would not undertake to decide. It would impose upon us an exceedingly unpleasant and delicate duty to perform if we should consent to bear and pass upon such disputes, and, therefore, this Court not only decided that it would not consider such controverted questions between counsel, but we have actually adopted Eule 39, which is as follows: “Tbe Court will not recognize any agreement of counsel in any case, unless tbe same shall appear in tbe record, or a writing filed in tbe cause in this Court.” This should have sufficiently warned members of the bar that if they consent to waive tbe directions of tbe statute, or of tbe Eules regarding tbe service of eases or tbe extension of time, tbe agreement must be evidenced by a writing; otherwise, if disputed, the pai*ty seeking to take benefit under it will not be beard by us. It is always better to reduce such agreements to writing, in order to prevent these unpleasant controversies, and this case but strikingly illustrates tbe wisdom and practical utility of tbe rule. The subject is fully reviewed by the present Chief Justice in Graham v. Edwards, 114 N. C., 229, and we reproduce here what was so aptly said by him in tbat case: “Tbe alleged agreement (for an extension of time to. docket case in this Court) was not in writing and is denied by appellee’s counsel. It cannot, therefore, be considered. Eule 39 of this Court, and numerous cases cited in Clark’s Code (2 Ed.), 704. This Court is for tbe correction of errors of law committed in tbe trial of causes below. We cannot be called upon to settle disputed matters of fact arising upon oral agreements of counsel. Hemphill v. Morrison, 112 N. C., 756. The duty of passing upon tbe correctness of memory of counsel as to such agreements wben there is a difference, is a delicate one. It is not contemplated by tbe statute that we should be called upon to discharge such function, and we have no right or disposition to assume it. We again repeat, as was lately said in Sondley v. Asheville, 112 N. C., 694: ‘It is to be hoped that hereafter counsel will in every instance put their agreements in writing or have them entered of record, when for any reason they may think best to depart from the plain provisions .of the statute. If they do not care to do this, the courts will not pass upon the controversies as to the terms or existence of such agreements.’ Our brethren of the bar owe it to themselves and to the Court to avoid bringing such controversies hereafter before the courts. Their experience as lawyers must impress upon them the treachery of memory among the very best of men. If not disposed to guard against differences of recollection by the easy inode of reducing agreements to writing, or having them entered on the minutes, the courts have no process to guage the accuracy of their respective recollections.”

In this case there is not the least ground for the disparagement of counsel, as nothing has been done which is not entirely consistent with the strictest integrity and a proper professional courtesy. Counsel simply have disagreed in their understanding of the facts, and that is all, and to avoid such unpleasant occurrences, the rule was adopted, and must be observed, as stated by the Chief Justice in the case just cited. ' We are unable to say that either of the counsel is infallible, and, therefore, that the statement of the one should give way to that of the other. They are equally honorable and truthful, and there is nothing to show that the memory of either one of them is more retentive than that of the other. We are all liable to err and should deal with each other charitably on that account, as' it is a frailty of human nature, and forgetfulness, therefore, is consistent with perfect honesty. The plaintiff’s counsel was under the express and positive instructions of his client not to make any agreement for an extension of time in serving the case on appeal, at least after tbe allotted time bad expired, and, therefore, did not bave tbe authority to do so. It appears to us that be was very careful not to waive any of bis client’s rights or to disobey bis instructions in what be did. ~We fully and readily acquit him of even tbe slightest wrongdoing, and find as a fact, and bold as matter of law, that be was at all times in tbe clear exercise of bis legal rights as an attorney, and strictly observed tbe directions of bis client, under which be was acting. He was without doubt misunderstood by tbe defendant’s counsel and in bis eagerness to be liberal and not disregard bis client’s instructions, be may bave conceded too much, when tbe sheriff signed tbe return of service, but be did not surrender any of bis client’s rights and could not do so under tbe circumstances. This is an honest difference of recollection between counsel, but we cannot settle it otherwise than by enforcing tbe rule of this Court.

It appears by tbe return of tbe officer that tbe defendant’s case on appeal was served 4 April, 1911; but be testifies by affidavit that this return is not true in fact, and that tbe case was actually served 14 September, 1911, long after tbe lapse of tbe extended time. In bis justification, it may be said that be merely signed tbe return in tbe presence of tbe counsel of plaintiff and defendant, at their request, or with their assent, tbe plaintiff’s counsel expressly reserving all of bis client’s rights, and especially tbe right to object to tbe service as being too late. But officers should make true returns as to time and manner of service, and if. they do not, tbe reason for misdating a return, or for any other inaccuracy, should be explained in tbe return — that is, tbe real facts should be fully stated. In this case no copy of tbe case on appeal was served upon tbe defendant’s counsel, as admitted by tbe officer. He should bave stated this fact in tbe return, and also tbe other undisclosed matters which are inconsistent with tbe return. But after all that can be said, tbe fact remains that there was no service of a case on tbe .plaintiff within tbe time prescribed by law, or within tbe extended time, and tbe motion of tbe plaintiff is granted.

The appeal of defendant is dismissed, and judgment will be entered in the court below for the plaintiff, if it has not already been done.

Appeal dismissed.