Adams v. Reeves

As we said in Wade v City of Newbern 72, N. C. Rep. 498, it is of prime importance that the rules pre.scribed in C. C. P. for preparing and sending up cases to this court should be strictly complied with. And wherever there has been a departure from them, and objection taken, we will sustain the objection, and dismisss the appeal. Nor can we hear testimony in excuse for the departure. The profession will recognize the propriety of this rule, when it is remembered how often counsel on opposing sides, make conflicting statements. In such cases we cannot undertake to decide between them. Equal forces operating in different directions leave the thing at rest.

-But still there must be innumerable cases where the courtesies of the profession will allow of departures. And where that appears of record, or is not dewed, then we will support them.

Circumstances which we could not consider upon a motion to dismiss the appeal, might nevertheless be considered on a motion for a c>rtiorari.

In the case before us, the appellant did not serve “ the case” upon the appellee within the prescribed time. And aftérwaids when he did serve it, it would have been competent for the appellee to take no notice of it, or to reject it. And if he had done so we would dismiss it. But then it was competent for the appellee to waive the lapse of time; and in that case we would entertain the appeal. The record shows no such waiver. And, as upon the motion to dismiss the appeal, we can hear no contradictory evidence, the motion must be allowed, if the waiver is denied and the counsel left to settle courtesies out of court.

The appellant flies an affidavit that there was such waiver. The appellee and his counsel file counter-affidavits. We can consider only the counter-affidavits: and miless it appears from them that the lapse of time was waived, the appeal must be dismissed.

*116Mr. Masten, the appellee’s counsel, states that the' appellant’s counsel served “ the case ” on him ; “ upon examining the case, I remarked, I cannot agree to this.” * ' * ' “ I then stated that they knew that I was one of 'Judge Wilson’s counsel, and intended to leave with him on the 18th for Naleigh,” &c. “ That I could not file my exceptions before I returned.” <! And that I wanted the aid of my associate counsel and their notes; that there were 100 witnesses examined, and I had taken no notes; but my associates had; and that the time was too short for me to do it. And finally I did not say whether I woidd make out any exceptions or not. My final remark was, .well, I will see about it.” * * * * *• *• “ On 25th or 26th, and it may have been as late as 27th or 28th January, 1875,1 made out our exceptions, or case, and handed the paper to Mr. Watson,” the appellant’s attorney, “stating that my family had been so sick that I could not do any thing before-That I would like to re-Write a part of-it, as I had-no time to even correct it.-”

It is true that Mr. Masten stated to the appellant upon other occasions that he was not authorized to waive any thing, and that “ no quarters was his mottobut still it is clear .that in this particular, he did by his conduct, waive the lapse of time. And having done so, we will hold him to it.

Now, here was not only no objection to the lapse of time, but he actually accepted the paper, and as soon as he could,, filed exceptions to it. Where then is the difficulty ? It happens in this way : The parties not being able to agree upon a statement of the case, ’it became necessary for the judge to settle it. And before he could- do so, he was ousted of his office.

So, the appeal is lost. And a certiorari will do ■ no good, because there is no judge who can settle the' case. The only remedy is, to remand the case for a new trial. Isler v Haddock, 72 N. C. Rep. 119.

*117The motion to dismiss the appeal, is not allowed. The motion for certiorari is not allowed. The case is remanded and a new trial ordered. Each party will pay his own cost in this court.

Pee Cüriam. . Judgment accordingly.