36 S.E. 35 | N.C. | 1900
The Code, sec. 876, provides: "If the judgment is rendered upon process not personally served, and the defendant did not appear and answer, he shall have fifteen days after personal notice of the rendition of the judgment to serve the notice of appeal herein provided for." Judgment was rendered, in an action based upon an attachment, by a justice of the peace against the defendant who was absent at work in another State. Within a short time he returned to the State, and as soon as he had information of the judgment he applied to the justice for a rehearing (Code, sec. 845) or an appeal, both of which were refused on the ground that the papers in the cause had already been sent up to the clerk of the Superior Court, as is required in attachments upon realty. Code, sec. 354. It is not contended that any personal notice of the judgment was ever given the defendant.
At the first term of the Superior Court, an affidavit and petition forrecordari were filed, and an order for the recordari issued. Not being obeyed, an alias issued, and on its return the plaintiff moved to dismiss, which was refused. No appeal lay from such refusal (Perry v. Whitaker,
There was no laches on the part of the defendant. He was entitled to an appeal upon learning of the judgment. He applied (530) *334
immediately to the justice of the peace, and he having refused to make a return of an appeal to be docketed in the Superior Court, it would have been useless to give notice to the plaintiff of an appeal which was not allowed to be taken. Besides if, as the defendant avers, he was not a nonresident he could have applied to the court for a writ of recordari
without applying to the justice of the peace for an appeal at all. McKee v.Angel,
No error.
(531)
