Opinion
September Term, 1893
Appeal — Divided Court — Affirmance of Judgment Below.
Where an appeal has been pending for several years, and this Court is evenly divided (one of the Judges not sitting), the uniform practice of appellate courts in such cases will be followed, and the judgment below will be affirmed and the appellant required to pay the costs.
ACTION, heard before Winston, J., at September Term, 1891 of CHATHAM.
Batchelor Devereux, T. B. Womack, W. W. Fuller and J. S. Manning for plaintiff.
D. Schenck, F. H. Busbee, W. A. Guthrie, J. W. Graham and John Manning for defendants.
From the judgment both parties appealed.
In this case both the plaintiff and defendants appealed. Mr. Justice Burwell did not sit, and the Court is evenly divided. The appeals have now been standing on this docket four terms. Under (241) these circumstances, following the uniform practice of appellate courts in such cases, the judgment below stands, not as a precedent, but as the decision in this case. Marshall, C. J., in Etting v. Bank, 11 Wheat., 59; Taney, C. J., in Benton v. Woolsey, 12 Pet., 27, and in Holmes v. Jenson, 14 Peters, 540; Washington v. Stewart, 3 Howard, 413, 424; Chase, C. J., in Reeside v. Reeside, 8 Wall., 302; Durant v. Essex Co., 8 Allen (Mass.), 103; 85 American Dec., 685. The appellants will respectively pay the costs, each in their own appeal.
Plaintiff's appeal affirmed.
Defendants' appeal affirmed.
Cited: Whichard v. R. R., 117 N.C. 615; Puryear v. Lynch, 121 N.C. 256; Bank v. Burlington, 124 N.C. 252; Boone v. Peebles, 126 N.C. 825; Miller v. Bank, 176 N.C. 159.