13 S.E. 843 | N.C. | 1891
When the case was called for trial, the defendant moved to dismiss the appeal for want of notice to him. Upon said motion his Honor found the following facts:
That the proceeding was instituted before a justice of the peace of Duplin County, and was tried before him on 4 March, 1891; that upon said trial the defendant was acquitted and judgment rendered in his favor; that no notice of appeal was given at trial; that on 10 March, 1891, the complainant, Alice Wells, served written notice of appeal on the justice who tried the case; that a notice of appeal signed by the complainant was handed to the defendant by a negro man, not a party *608 and not an officer, between 4 March and the said August Term, 1891; that shortly after said 4 March, 1891, a notice corresponding with the said description was in possession of one of the defendant's attorneys, and said attorney admitted that said notice had been sent to him, by mail, by the defendant.
The defendant was present in court with all his witnesses, who (853) had been duly subpoenaed.
Upon the above facts, his Honor held that the defendant, from which sufficient notice of the appeal, and overruled the motion, and the defendant excepted.
There was a verdict and judgment against the defendant, from which latter he appealed.
The court having refused the motion to dismiss, the defendant pursued the proper course in having his exception noted "to save his rights," and proceeding with the trial. Spaugh v. Boner,
On the facts found, his Honor erred in finding that there was sufficient service. The statute requires (unless the appeal shall be taken at the trial) that notice of appeal shall be served in ten days after judgment. As has been said, the burden is on appellant to show service within the prescribed time. Finlayson v. Am. Accident Co., ante, 196;Spaugh v. Boner,
It is, however, contended that notice having been served on the justice, no notice to appellee was required. We have an express decision to the contrary ((Green v. Hobgood,
There having been no service of notice of appeal, as required by statute, upon defendant within ten days, and his Honor not having exercised his discretionary power to relieve the appellant of the consequences and to permit notice to be given at the trial, there was error in refusing the motion to dismiss. The power to relieve from the failure to give due and proper notice of appeal is vested in the wise discretion of the presiding judge, and should only be exercised when there are facts and circumstances which would make it a hardship on the appellant not to permit it to be done. The policy of legislation and of the courts is to "require litigants to be diligent in prosecuting appeals from justices of the peace, and to prevent parties from using" such "as means of causing useless delay."Avery, J., in Ballard v. Gay,
Let this be certified, that the appeal from the justice may be dismissed in the Superior Court.
Error.
Cited: Clark v. Mfg. Co.,
(856)