Opinion
(Filed 4 April, 1905.)
Appeal — Countercase — Time of Service — Correction Certiorari.
1. Neither this Court nor the court below can change, Without agreement of both parties, the requirements of section 550 of The Cede, which provides that if the appellant's case on appeal is not returned by appellee In five days, "with objections," it shall be deemed "approved."
2. Where appellee's countercase, through inadvertence of counsel, was not served until the eighth day after service of appellant's case on appeal, a motion by appellee for certiorari will be denied, though appellee produces a letter from the trial judge that appellant's case is erroneous and, If given an opportunity, he will correct it.
3. It Is only when the trial judge has settled the case on appeal, In the exercise of his proper jurisdiction, that this Court, upon affidavit of error therein, and a letter from the judge that he wishes to make the correction, will give him such opportunity.
ACTION by W. T. Barber against Luther Justice, heard by (21) Peebles, J., and a jury, at October Term, 1904, of SCOTLAND. From a judgment for the defendant, the plaintiff appealed. Appellee's motion for a certiorari being denied, he assented to a new trial.
John D. Shaw Son and Gibson for appellant.
Jonathan Peele and M. L. John for appellee.
Motion by appellee for certiorari. The appellant served his statement of case on appeal within the statutory time. Appellee's countercase was not served until the eighth day thereafter. The Code, sec. 550, provides that if the appellant's case is not returned by appellee in five days "with objections" it shall be "deemed approved." S. v. Price, 110 N.C. 600 and cases cited. There is no agreement to extend time alleged or admitted, and neither this Court nor the court below can change the statutory requirement. The appellee does not allege that he was misled by the opposite party, but says that he relied upon the statement of another member of the bar that he had ten days in which to serve his countercase. In a criminal case, S. v. Downs, 116 N.C. 1066, the Court said: "Ignorance of law excuses no one, and the vicarious ignorance of counsel has no greater value. S. v. Boyett, 32 N.C. 336. . . . If ignorance of counsel would excuse violations of the criminal law, the more ignorant counsel could manage to be the more valuable and sought for, in many cases, would be his advice." If this is true in criminal cases, certainly the inadvertence of counsel in a civil case cannot be more efficacious. In Phifer v. Ins. Co., 123 (22) N.C. 410, Douglas, J., says: "While it is always matter of regret that any one should suffer by following the advice of licensed attorneys, we cannot ignore the rights of adverse parties, or disturb the orderly procedure of the courts without sufficient cause."
If the judge had, notwithstanding, "settled" the case, it would not have cured the failure to serve countercase in time, for the judge could no more extend the statutory time after failure to serve countercase in time than he could beforehand. Barrus v. R. R., 121 N.C. 505; McNeill v. R. R., 117 N.C. 642; Forte v. Boone, 114 N.C. 176. Knowing the above and similar authorities, the judge below did not attempt to settle the case, but the petitioner produces a letter from him that the appellant's "case" is exceedingly erroneous and, if given an opportunity, he will correct it. The appellee had an opportunity to do this by filing his exceptions to appellant's case within five days after service thereof, and not having done so, he waived the right to have the matter submitted to the judge for correction. The case must be "deemed approved," says the statute, Code, sec. 550. In Ice Co. v. R. R., 125 N.C. 17, the application was from the appellant fixed with a heavy judgment (and not as here from appellee, who can but suffer a new trial), the facts were exceptional, and that case is a precedent which can rarely be followed and only under a like unusual combination of circumstances.
It is only when the judge has settled the case, in the exercise of his proper jurisdiction, that upon affidavit of error therein and a letter from the judge that he will correct it if given the opportunity, the Court will give him such opportunity. Such letter from the judge is required, not as a courtesy to him, nor as an acknowledgment of any inherent discretion in him, but because it would usually be doing a vain thing, and most often would result in needless delay, to grant a certiorari to give the judge opportunity to correct a case, already certified by him (23) as correct, unless counsel have had the diligence to procure a letter from the judge that he wishes to make the correction. Cameron v. Power Co., 137 N.C. 104; Sherrill v. Tel. Co., 116 N.C. 654; Boyer v. Teague, 106 N.C. 571, and other cases cited in Clark's Code, (3 Ed.), p. 936. Here, the judge not having been vested with jurisdiction to settle the case, by reason of appellee's failure to file exceptions to appellant's case in the time allowed by law, this Court cannot set aside the appellant's rights under the statute and confer jurisdiction by issuing a certiorari.
Upon the motion being denied, the appellee in open court assented that a new trial should be awarded, and it is so ordered.
PER CURIAM. New trial.
Cited: Cressler v. Asheville, post, 487; Cozart v. Ins. Co., 142 N.C. 523, 524; Vivian v. Mitchell, 144 N.C. 477; Truelove v. Norris, 152 N.C. 756; Drewry v. McDougald, ib., 759; Smith v. Miller, 155 N.C. 248; Hawkins v. Tel. Co., 166 N.C. 214; Transportation Co. v. Lumber Co., 168 N.C. 61; Allen v. McPherson, ib., 437; Lindsey v. Knights of Honor, 172 N.C. 820; Ham v. Person, 173 N.C. 74; S. v. Faulkner, 175 N.C. 789; Howard v. Speight, 180 N.C. 655.