Higdon v. Nantahala Power & Light Co., 207 N.C. 39 (1934)

Sept. 19, 1934 · Supreme Court of North Carolina

207 N.C. 39

DENNIS HIGDON v. NANTAHALA POWER AND LIGHT COMPANY, Self-Insurer.

(Filed 19 September, 1934.)

1. Courts A c—

Where no procedure for appeal is prescribed by statute, tbe rules regulating appeals from a justice of tbe peace are applicable and controlling.

2. Master and Servant F i—

Tbe statutes regulating appeals from a justice of tbe peace are applicable and control in appeals from tbe Industrial Commission to tbe Superior Court, N. O. Code, 8081 (ppp), failing to provide tbe procedure for sueb appeals.

3. Same — Notice of appeal from award of Industrial Commission held not given appellee as required by statutes applicable.

A carbon copy of a letter written by tbe secretary of the Industrial Commission to tbe attorneys for appellant relating to tbe appeal, wbicb carbon copy is sent by tbe secretary of the Industrial Commission to tbe attorneys for appellee, is not sufficient notice to appellee of an appeal from an award of tbe Industrial Commission, appeals from tbe Industrial Commission, N. C. Code, 8081 (ppp), being governed by the statutes regulating appeals from a justice of tbe peace, and such notice being insufficient under tbe statutes applicable, C. S., 1630, 1531, tbe appeal was properly dismissed in tbe Superior Court.

Civil action, before Alley, J., at May Term, 1934, of Jackson.

The plaintiff sustained an injury to his right ankle on Y June, 1933, and asserted that he was in the employ of the defendant at the time of the injury. The defendant asserted that the plaintiff was an independent contractor. A claim was filed with the Industrial Commission and a hearing had thereon, and the hearing commissioner found that the plaintiff was not entitled to recover, and denied an award. Upon appeal to tbe full Commission tbe award of tbe bearing commissioner was approved and tbe claim denied. On 9 January, 1934, tbe attorney for tbe plaintiff gave notice of appeal to tbe Industrial Commission, and on 12 January, 1934, tbe secretary of tbe Industrial Commission wrote a letter to plaintiff’s attorney, stating: “Enclosed herewith certified copy of tbe record in tbe above case for your use in docketing appeal in tbe Superior Court of Jackson County, together with bill covering same. In order to complete our records, please let us have information as to date this appeal is docketed and let us have copy of judgment. Yours very truly, E. W. Price, Secretary, cc to: Messrs. Black & Whitaker, Attorneys, Bryson City, N. C.” Black & Whitaker are attorneys of record for tbe defendant. Thereafter tbe defendant made a special appearance in tbe Superior Court to dismiss tbe appeal of plaintiff for tbe reason “that no notice of appeal from tbe award of said Industrial Commission in North Carolina has ever been served on tbe said defendant or its attorney by tbe said plaintiff, acting either for himself or by and through bis attorney, as is provided for or required by law.”

Thereupon tbe trial judge, after considering tbe motion, dismissed tbe appeal, and tbe plaintiff appealed to this Court.

E. P. Stillwell for plaintiff.

S. W. Bloch for defendant.

BbosdeN, J.

Does tbe carbon copy of tbe letter of tbe secretary of tbe Industrial Commission to tbe attorneys of defendant constitute a notice of appeal as contemplated by law?

C. S., Michie’s Code, 8081 (ppp), provides that “either party to tbe dispute may, within thirty days from tbe date of such award, or within thirty days after receipt of notice to be sent by registered mail of such award, but not thereafter, appeal from tbe decision of said Commission to tbe Superior Court . . . for errors of law, under tbe same terms and conditions as govern appeals in ordinary civil actions,” etc. It is obvious that tbe Compensation Act provides no specific machinery for appeal to tbe Superior Court, except tbe words, “under tbe same terms and conditions as govern appeals in ordinary civil actions.” It has been held in this State that where no procedure is prescribed by statute for appeals, tbe rules regulating appeals from a justice of tbe peace are applicable and control. This principle was first expressed in Blair v. Coakley, 136 N. C., 405, 48 S. E., 804, as follows: “In tbe absence of any procedure prescribed by statute, we must proceed by analogy to tbe practice in other like cases, so that tbe intent and purpose of the Legislature may be effectuated as near as may be, and that tbe right of appeal may be preserved to tbe citizen, and at tbe same time not abused. It is well, therefore, to adopt tbe rules regulating appeals from justices’ courts as being more nearly analogous to those which should govern in cases like the one under review, and more likely to carry out the intention of the Legislature and less apt to work injustice to the parties. ¥e think, further, that those rules are reasonable and necessary to prevent delay, and they can easily be observed.” See S. v. Carroll, 194 N. C., 37, 138 S. E., 339.

The statutes regulating appeals from judgments rendered by justices of the peace are C. S., 1530 and 1531. The carbon copy of a letter from the secretary of the Industrial Commission to the attorney for the defendant cannot be construed as a compliance with the applicable statutes. McIntosh, in North Carolina Practice and Procedure, p. 776, section 677, says: “An appeal is the act of the party and not of the court, and it requires the entering of the appeal and giving notice in the manner provided by statute.” In the case at bar the appealing party did not give notice as required by law. The trial judge therefore ruled correctly.

Affirmed.