Opinion
(February Term, 1896.)
PRACTICE — APPEAL — CASE ON APPEAL, SERVICE OF — VERBAL AGREEMENTS OF COUNSEL.
1. The service of a case on appeal by counsel is a nullity, unless the defective service be waived by agreement in writing or by conduct showing a waiver, such as by returning the appellant's case, with exceptions thereto, and without objecting to the defective service.
2. Alleged verbal agreements of counsel will not be considered.
3. Where appellant's counsel handed the case on appeal to appellee's counsel, who did not accept service, but returned the case, with his exceptions, to appellant's counsel, who rejected the counter-case as not being returned in apt time, but neither sent the papers to the judge to settle the case nor caused his own case, with appellee's exceptions, to be certified to this Court: Held, that there is no valid case on appeal, and, there being no error apparent on the record, the judgment below will be affirmed.
ACTION tried at February Term, 1895, of GUILFORD, before Greene, J., and a jury.
Shepherd Busbee for defendants.
No counsel contra.
There was judgment for the defendants, and plaintiffs appealed.
Within the time for serving case on appeal, appellants' counsel prepared and handed to appellees' counsel his statement of case on appeal, on back of which was endorsed, "Case on appeal served on Dillard King, attorneys for Evitt Bro., by leaving same with said attorneys, 30 March, 1895. (Signed) John A. Barringer, (356) plaintiff's attorney." The service was not accepted by appellees' counsel, though appellants' counsel alleges that he was given to understand that service would be accepted. This, however, is denied by appellees' counsel. The latter retained the case until 3 June, 1895, when he handed it, with his exceptions to the case, to appellants' counsel, who immediately returned the countercase, with the following endorsement: "Received on 3 June, 1895, by being delivered to me, as attorney for Roberts Hoge, and returned same day to R. R. King as not having been served within time allowed. (Signed) John A. Barringer, attorney for Roberts Hoge."
Appellants' case, with the exceptions of appellees, was not sent to the judge for settlement.
In this Court the appellees moved for affirmance of the judgment below, on the ground that no case on appeal had been served on defendants.
In his affidavit appellants' counsel says plaintiff's counsel was under the impression that the defendants' attorney had accepted the case of plaintiffs, and insists that by his conduct the defendants' attorney has misled the plaintiffs and has approved of the said case on appeal, and is now estopped from denying that it is the case on appeal. The judge had left the district and gone home.
The facts as to service of the case on appeal are very similar to those in the recent cases of Cummings v. Hoffman, 113 N.C. 267, and Lyman v. Ramseur, ib., 503. The attempted service of the appellants' case on appeal by counsel was a nullity. S. v. Price, 110 N.C. 599. The affidavit of the appellants' counsel that the defendants' counsel verbally agreed to accept service is denied (357) by the latter and cannot be considered. Rule 39 of this Court and numerous cases cited in Clarke's Code, (2d Ed.), 704, and in the supplement to the same, p. 103. The return of the appellants' case by the appellees, with exceptions thereto, if an apt time and without objecting to the defective service thereof, might have been deemed a waiver, and in such case the appellants, not having sent the papers to the judge to settle the case on disagreement, would be taken to have accepted the appellees' amendments ( Lyman v. Ramseur, supra), and the case on appeal would be the appellants' statement, as amended by the appellees' exceptions. Jones v. Call, 93 N.C. 170; Owens v. Phelps, 92 N.C. 231. But the appellants' counsel rejected the appellees' countercase, as he had a right to do, on the ground that it was returned too late, and neither sent the papers to the judge to settle the case nor caused his own case, as amended by the appellees' exceptions, to be certified to this Court. Consequently there is no valid case on appeal before us, and the judgment must be affirmed, unless error appears upon the face of the record proper ( Lyman v. Ramseur, supra), and, no error appearing therein, the judgment below is
Affirmed.
Cited: Smith v. Smith, 119 N.C. 313, 317; Lindsey v. Knights of Honor, 172 N.C. 822.
(358)