53 N.C. 119 | N.C. | 1860
The facts appearing from the pleadings and proofs are: That Charles F. Fisher, who is the president of the North Carolina Railroad Company, having been informed that suit was about to be brought before a justice of Johnston County against the company by the plaintiff Vinson for damages to stock, and being of opinion that the said Vinson had no just right to recover damages for the alleged injury, gave directions to one Millinder, who was a station agent, in case the suit was *92 brought and decided against the company by the magistrate, to take an appeal; that Millinder attended the trial before the justice of the peace and resisted the claim on behalf of the company, but that the justice, nevertheless, gave judgment against the company for ninety dollars, damages and costs, whereupon, Millinder prayed an appeal to the next county court, but from ignorance of the law in this respect he filed to give security for the prosecution of the appeal, and after the expiration of ten days execution issued on the justice's judgment for the amount recovered. Millinder was the officer of the company on whom notice was served to institute the action, and attended the trial in person. Mr. Fisher, the president, lived in a distant county and was so much engrossed with the more important duties of the company as not to be able to attend in person to matters of this kind, but left them usually to the agents most convenient to the scene of the transaction; he had been informed and was warranted in believing that (120) Millinder was a faithful and diligent agent in his management of the business of the company intrusted to him.
The prayer of the petition is for a recordari, and for a supersedeas to stop the collection of the execution.
The order for these writs having been made and the case brought up, and motion being made to place it on the trial docket for a new trial, his Honor disallowed the motion, and the defendant appealed. An appeal having been prayed for, the case falls within the principle ofSharpe v. McElwee, ante, 115, "where an appeal is prayed, and the party accounts in a satisfactory manner for his failure to prosecute it, so as to repel the inference of an intention to abandon it and acquit himself of laches, the writ of certiorari or recordari will issue `as a matter of course' in order to give him the benefit of his right of appeal."
By the affidavit of Mr. Fisher, it is clearly established that it was the intention of the North Carolina Railroad Company to contest the alleged right to recover damages. So, the inference of an intention to abandon the right of appeal is repelled. In this connection, the "affidavit of merits," which is full, though not absolutely necessary (as an appeal was prayed), is relevant and has a convincing effect.
The question, then, is, Does the railroad company acquit itself of laches, by the matter set out in the petition and affidavit of Mr. Fisher? In other words, does Mr. Fisher, who is the president of the company and had notice of a claim, which he believed not to be well founded and *93 was fit to be controverted by the company, acquit himself of laches, by the fact that he gave positive instructions to Millinder, the station agent, to attend the trial before the justice and take an appeal on behalf of the company, if judgment should be rendered (121) against it?
The petition sets forth the fact, that Millinder had the reputation "of being a faithful and diligent agent," and this Court is of opinion that Mr. Fisher was well warranted in taking it for granted that Millinder was aware of the fact that it was necessary in all appeals to give security, and, consequently, he was not guilty of laches in omitting to tell Millinder, in so many words, that he must provide security for the company, in case he had to take an appeal.
The fact that Millinder, being an officer of the company, had imbibed the impression that the North Carolina Railroad Company was an institution of such importance that it was not required to give security for an appeal like an ordinary individual was a matter which President Fisher, in the exercise of ordinary diligence, could not be expected to have anticipated.
The objection that ignorance of the law is no excuse, however applicable it may be in reference to Millinder, tends to relieve Mr. Fisher from the charge of laches. For it is based on the presumption that every one knows the law, and, therefore, he was justified in presuming that Millinder knew that it was necessary for the company to give security, and as the law allows ten days to give security, he was also justified in presuming that if Millinder found any difficulty in procuring security he would be duly notified of the fact.
As there was a bona fide intention to appeal, and no laches on the part of the president, the company should not, under the circumstances, be deprived of the right. There is error. Judgment dismissing the petition reversed. This opinion will be certified to the end that the case may be transferred to the trial docket.
PER CURIAM. Reversed.
Cited: Wade v. New Bern,
(122)
