Green v. Hobgood, 74 N.C. 234 (1876)

Jan. 1876 · Supreme Court of North Carolina

74 N.C. 234

JOHN B. GREEN v. ROBERT H. HOBGOOD.

It is not sufficient for a defendant, for the purpose of perfecting an appeal from the judgment of a Justice of the Peace, to the Superior Court, to show that when the case was called for trial on the 3d of October, 1874, it was continued at the instance of his co-defendant until the 16th day of the same month; that on the said 3d of Oeto-’ her, another case, in which he was also defendant, and which involved the same merits, was tried, and judgment rendered against him, from which judgment his attorney appealed; and that then and there, in the presence of the plaintiff, his attorney gave notice to the Justice, that if neither his client nor himself could be present at the trial on the 16th, and if judgment should be rendered in favor of the plaintiff, he requested the Justice to make this entry, “an appeal prayed by the defendant H. atone, and granted as to himthat he did not know whether the plaintiff heard this notice or not. The requirements of the State regulating appeals are plain and simple, the neglect of which should no longer receive the indulgence of the courts.

{Marsh v. Oohen, 68 N. C, Rep. 283, cited and approved.)

This was a motioN by tbe plaintiff to dismiss an appeal from tbe court of a Justice of tbe Peace to tbe Superior Court of GeaNvillh county. The motion was heard at July (special) Term, 1875, Ms Honor Judge Moore presiding.

The grounds upon which the motion to dismiss was based were, that no appeal was prayed by the defeudant at the time tbe judgment was rendered against Mm in tbe Justice’s court; that tbe plaintiff was not present, either in person or by attorney, at any time wben an appeal was prayed, nor was any notice ever given to the plaintiff of an appeal by tbe defendant, as required by law.

In support of tlie motion tbe plaintiff filed several affidavits which it is unnecessary to set out.

The defendant resisted the motion, and offered in evidence the affidavit of A. S. Peace, Esq., Ms attorney, which was substantially as follows: He was of counsel for the defend ant, Hobgood, at tlie time of the rendition of judgment in. the case by tbe Justice of the Peace. He 'was at Dutchville on the 3d-of October, 1874, on which day the case was set for trial. .The case was called by the Justice, and continued at the instance of the, defendant, .Ohappel, to the 16th day of-October. On the 3d day of October* the Justice tried the-case of John B. Green -against Willis-Eogers, E. O. Weathers and E. II. Hobgood, and that he appeared as counsel for Hob-good. In that case the Justice rendered judgment against, the defendants, from - which judgment, as counsel for Hob-good, he appealed. Believing- the merits of this case were-the same as those- of the case aforesaid, he had no hope of' preventing judgment being rendered against his client in this action when it should be heard on the 16th of October, and remembering the distance (eighteen miles) which he and his. client resided from Dutchville, the place of trial, he then and there gave notice to the Justice that .if neither his client nor himself should be present at the trial, and if the court should render judgment in favor of the plaintiff, to make this entry i. An appeal prayed by the defendant, E. H. Hobgood, alone,., and granted as to him. He did not know that ■ the plaintiff heard the notice to the Justice, but he was present and might have heard it if he desired. Before this case was called for trial he had a conversation with the plaintiff, in which eacli party declared it to be his fixed purpose to appeal, should judgment be rendered against him.

Upon the hearing his Honor allowed the motion, and dismissed the appeal, whereupon the defendant appealed.

No counsel for plaintiffs.

A. S. Peace, Bmbee efe Busies, and J. W. Pays, for defendant.

Settle J.

This is an appeal from an order of his Honor, Judge Moore, dismissing an appeal from a judgment of a. •Justice of the Peace, upon the ground that no appeal was. prayed by the defendant at the time of the rendition of the judgment, nor was the plaintiff present in person or by attorney at-any time when an appeal was prayed, nor was any notice of appeal from said judgment ever given to the plaintiff as required by law.

The statute regulating appeals from Justices of the Peace to the Superior Court, Bat. Rev. chap. 63, sec. 53, et s q. prescribes certain plain and simple requirements for perfecting appeals, the neglect of which so long since the Code went into operation, should not receive the indulgence of the courts. The matters of excuse presented by the defendant are not •sufficient.

His counsel referred as to the case of Marsh v. Cohen, 68 N. C. Rep. 283, but that is an authority directly in point against the defendant.

It is there said, “ if an appeal of which no notice had been given to the opposite party, (the word no, before notice is omitted in the report of the case, but this is evidently a mistake) should be docketed in the Superior Court, while the Judge would certainly refuse to try the case until reasonable notice was given and might dismiss the appeal, he might also in his discretion retain the case and allow a reasonable time in which to give notice.” _

■In the case before us his Honor dismissed the appeal, as we ■think properly.

His judgment is therefore affirmed. Let this certified, &c.

Pee Curiam. Judgment affirmed.