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Leduc v. Moore

Supreme Court of North Carolina
Sep 1, 1893
113 N.C. 275 (N.C. 1893)

Opinion

September Term, 1893

Certiorari — Lost Appeal — Conflicting Statements of Counsel.

Where the petition for a certiorari is based upon the allegation that in the court below plaintiff's counsel orally accepted notice of petitioner's appeal and extended the time for stating the case, and it is conceded that the record in the court below contains no entries as to such agreement, and the plaintiff's counsel denies the same, this Court will not undertake to decide between the conflicting statements of counsel, but will adhere strictly to Rule No. 39 of the Supreme Court.

PETITION of defendants for writ of certiorari, The case was tried at April Term, 1893, of FRANKLIN, before Shuford, J., and a jury, and there are conflicting affidavits of counsel and others as to verbal notice of appeal and agreements of counsel as to extension of the time for (276) making statement of case on appeal.

N. Y. Gulley for petitioners.

T. H. Sutton contra.


The petitioner bases his application for a writ of certiorari upon the allegation that in the court below plaintiff's counsel orally accepted notice of his appeal and extended the time for stating the case. It is conceded that the record in that court does not show that an appeal was asked at the trial, or that any notice of an appeal was waived or accepted, or that the time for stating the case was extended. The plaintiff's counsel denies that he made any such agreement. His denial puts an end to the matter, for we cannot undertake to decide between them, but must adhere strictly to the rule of this Court (No. 39) and follow the decisions heretofore made in the like cases, the latest of which is Sondley v. Asheville, 112 N.C. 694.

Motion denied.

Cited: Smith v. Smith, 119 N.C. 313.


Summaries of

Leduc v. Moore

Supreme Court of North Carolina
Sep 1, 1893
113 N.C. 275 (N.C. 1893)
Case details for

Leduc v. Moore

Case Details

Full title:W. G. LEDUC, RECEIVER OF PEOPLES NATIONAL BANK, v. E. F. MOORE ET AL

Court:Supreme Court of North Carolina

Date published: Sep 1, 1893

Citations

113 N.C. 275 (N.C. 1893)
18 S.E. 70

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Smith v. Smith

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