Rawls v. Norfolk Southern Railroad, 172 N.C. 211 (1916)

Oct. 11, 1916 · Supreme Court of North Carolina

172 N.C. 211

RAWLS & TINGLE v. NORFOLK SOUTHERN RAILROAD.

(Filed 11 October, 1916.)

1. Justice’s Court — Appeal—Irregularities—Waiver—Conduct of Appellee.

While an appellant from a justice’s judgment must see tbat bis appeal is docketed in tbe Superior Court witbin tbe statutory time, bis failure to bave done so is an irregularity which the conduct of tbe appellee may waive; as when tbe appellant fails to pay tbe clerk for docketing the case until after tbe expiration of tbe time, tbe case remains on tbe docket for a year and a half, has several times been set for trial, both parties bave taken tbe deposition of a witness, and then tbe appellee moves to dismiss for a failure of tbe appellant to bave paid the clerk’s fee in time.

2. Appeal and Error — Instructions—Objections and Exceptions.

Exceptions to tbe charge of tbe court must be duly noted of record, or they will not be considered in the Supreme Court on appeal.

3'. Appeal and Error — Unanswered Questions — Objections and Exceptions.

Where the refusal of the trial judge to permit a witness to answer a . question is excepted to, the record must indicate what the answer of the witness would have been, or it will not he considered in the Supreme Court on appeal.

Civil actioN tried before Whedbee, J., at May Term, of Pamlico.

This is an action to recover damages for the loss of 125 crates of cabbage, tried in the Superior Court on appeal by defendant from a judgment of a justice of the peace.

When the case was called for trial at May Term, 1916, the plaintiff moved to dismiss the appeal because it .was not docketed at the next term after the trial before the justice. The motion was denied, and the plaintiff excepted.

The court found the following facts in reference to the appeal:

That the case was tried 18 August, 1914, before I. W. Miller, J. P., judgment rendered in favor of plaintiff; defendant in open court gave notice of appeal and paid the justice for making his return, and also 50 cents to cover cost of docketing same in the Superior Court. Before the next term of court the justice mailed the return in this case to the then clerk of the court, but did not transmit to him the fee of 50 cents for docketing same; the clerk held same until 5 December, 1914; it was then after the next term of court, when counsel for defendant, learning of the reason why the clerk did not docket same, paid him the 50.cents on 5 December, 1914, and had same placed on the docket for trial; that this case has been set for trial several times; this is the first time this motion was made.

It also appears from the record that both plaintiff and defendant took the depositions of nonresident witnesses preparatory to the trial.

There are other exceptions which will be referred to in the opinion.

There was a verdict and judgment in favor of the plaintiff, but for less than the amount claimed by him, and he appealed.

Z. V. Bawls for plaintiff.

Moore & Dunn for defendant.

AlleN, J.

The authorities fully sustain the position of the plaintiff that it is the duty of one who appeals from a judgment of a justice of the peace to see that his appeal is docketed at the next term of the Superior Court (Abel v. Power Co., 159 N. C., 348); but as was said in Love v. Huffines, 151 N. C., 380: “It does not follow that the appellee, by whom the judgment before the justice was obtained, could not waive his right to object to any irregularities in the procedure by which the case was carried into the Superior Court, by his own laches or by such conduct as would be tantamount to an admission on bis part tbat tbe irregularities bad worked no barm to him, and therefore be was willing to accept tbe jurisdiction of tbe bigber court, as derived from tbe lower court, and try tbe case in tbe former court upon its merits. Tbis is not a case wherein there is any inherent lack of jurisdiction, in tbe magistrate or tbe Superior Court, of tbe cause of action or tbe person. . . . If they intended to take advantage of any technical delay of tbe defendant in carrying bis case to tbe higher court, it whs simple justice, and even fairness, tbat they should have said so before they entered upon tbe trial of tbe case, having accepted a jury in tbe Superior Court, and thereby expressed their willingness in tbe most emphatic way tbat tbe case should be heaid in that court upon its real and legal merits. Litigants' may waive their rights, and even their constitutional rights.”

Tbe evidence of waiver is clear. Tbe appeal was on tbe docket of tbe Superior Court one and a half years with no notice from tbe plaintiff tbat be intended to take advantage of any irregularity in the appeal; it was set for trial several times and tbe parties incurred tbe expense of taking depositions preparatory to a bearing on tbe merits.

We have examined tbe charge, and find nothing of which tbe plaintiff can justly complain; but if it were otherwise we could not consider tbe error, because there is no exception to tbe charge in tbe case on appeal.

As was pointed out in Worley v. Logging Co., 151 N. C., 499, “Tbe preparation of tbe assignment of error is tbe work of tbe attorney for tbe appellant, and is not a part of tbe ease on appeal, and its office is to group tbe exceptions noted in tbe case on appeal; and if there is an assignment of error not supported by an exception, it will be disregarded.”

Tbe exception to tbe refusal of tbe court to permit a witness to answer a question as to market value is also without merit, as tbe record does not indicate what tbe answer of tbe witness would have been.

No error.