26 S.E. 26 | N.C. | 1896
Plaintiff brought this action against defendant in a justice's court and obtained a judgment in December, 1894. The defendant prayed an appeal in open court. At Spring Term, 1896, of the Superior Court the defendant recovered judgment against plaintiff, *286 who, within one year, upon notice, moved to set aside the judgment on the ground of excusable neglect under section 274 of The Code. His Honor, by request, upon affidavits, found the facts as follows: That at the trial before the justice of the peace the defendant prayed an appeal in open court. That at said trial the plaintiff was not present, either in person, by attorney or agent, and that King (the supposed (474) agent) nor the justice was authorized to act as plaintiff's agent, nor to accept or waive service of notice of appeal. That the appeal was taken and prosecuted without any notice given or served on the plaintiff, and without the plaintiff being present in person or by attorney. His Honor adjudged that the judgment at Spring Term, 1896, was irregular, and was taken by surprise and excusable neglect, and was contrary to the course and practice of the Court, and ordered the same to be set aside and that the case be restored to the docket for trial, plaintiff waiving notice. The defendant appealed, and insists that his Honor erred in holding that the notice given at the justice's trial was not valid and in his findings of fact.
His Honor was the sole judge of the weight and credibility of the evidence, and his findings of fact are conclusive upon this Court, when there is any evidence such as would be submitted to a jury upon such an issue raised by pleadings, and his findings of fact are not reviewable. Code, sec. 274; Weil v. Woodard,
In all cases the appellee is entitled to notice of an appeal as provided by statute. An appeal must be taken within ten days after judgment rendered or within ten days after notice thereof. Acts 1889, ch. 161; Code, sec, 549. Notice of appeal must be served within ten days after judgment, or if there was process not personally served and no answer is filed the notice of appeal may be filed within fifteen days after notice of the rendition of the judgment. Code, sec. 876. Parties regularly in Court are charged with knowledge of all subsequent proceedings, without service of a copy, unless specially directed, which was not the rule of practice in England. Collier v. Bank,
AFFIRMED.
Cited: Norton v. McLaurin,