Opinion
(February Term, 1892)
Appeal, Case and Exceptions — Certiorari — Laches — Notice, Service of.
1. The statute [The Code, sec. 597 (2)] regulating the manner of service of notices is applicable to service of case on appeal and exceptions thereto.
2. Defendants in a criminal action served case on appeal upon the solicitor in due time, but it was agreed between counsel for appellant and the solicitor that the latter should have fifteen days within which to file exceptions; the exceptions were prepared and sent to the associate counsel of the solicitor, who resided in the same town with the defendants' attorney, on the fifteenth day, with instructions to hand them to defendants' counsel, but as he was absent, it was not done until next day: Held, that there was laches in not causing the exceptions to be served within the stipulated time, and defendants were entitled to a certiorari to send up their case, which would be substituted for that settled by the trial judge.
APPLICATION for certiorari to bring up defendants' case on appeal.
Attorney-General for the State.
D. A. Covington, J. B. Batchelor, and John Devereux. Jr., for defendants.
MERRIMON, C. J., dissenting.
The appellant's counsel agreed, in writing, that the solicitor should have fifteen days within which to serve his countercase or exceptions to appellant's case. On the fifteenth day the countercase was sent by the solicitor to counsel who had been employed to assist in the prosecution, who lived in the same town (Monroe) with the defendants' counsel, and it is alleged that the countercase would have been served on the latter day within the stipulated time, but the defendants' counsel was absent from home that day at Greensboro, and on his return the next day the countercase was served on him. The papers having been sent to the judge, he notified counsel of the time and place of settling the case on appeal. The defendants' counsel did not attend, but wrote to the judge insisting that the countercase, not having been served on him till the day after the expiration of the agreed time, the judge had no power to settle the case, and that the defendants' statement (600) should be sent up as the case on appeal. The judge found the facts as above stated, and proceeded to settle the case on appeal, which is in the transcript. The appellant now asks that the judge's statement of the case on appeal be disregarded, and that a writ of certiorari issue to the clerk to send up the defendants' statement of the case, to the end that the case in this Court should be argued thereon.
If the appellee files no exceptions within the proper time to appellant's case, the latter should be certified to this Court, and will be taken here as the case on appeal. Russell v. Davis, 99 N.C. 115; Simmons v. Andrews, 106 N.C. 201; Booth v. Ratcliffe, 107 N.C. 6; S. v. Carlton, 107 N.C. 956. This, however, would not apply where the failure to serve the countercase in time was without laches on the part of the appellee. Russell v. Koonce, 102 N.C. 485; Mitchell v. Haggard, 105 N.C. 173, and cases cited in Simmons v. Andrews, supra. The appellee contends that such was the case here, because the countercase was in Monroe, and would have been served in time, but that this was prevented and made impossible by the absence of appellant's counsel. This contention loses sight of the fact that service of the countercase could not be prevented by such absence. The Code, sec. 597 (1), provides that "notices and other papers" may be served on the attorney "during his absence from his office by leaving the paper with his clerk therein, or with a person having charge thereof, or when there is no person in the office, by leaving it between the hours of 6 in the morning and 9 in the evening in a conspicuous place in the office, or, if it be not open to admit of such service, then by leaving it at the attorney's residence with some person of suitable age and (601) discretion"; section 597 (2) provides for service of papers upon the party himself ( Turner v. Holden, 109 N.C. 182); section 597 (4) provides that this mode of service shall not apply to "a summons or other process or of any paper to bring a party into contempt." It seems clear, therefore, that it applies to all other papers, including cases and countercases on appeal. It is reasonable that it should be so, since these must be served within a limited time; and if the statute did not apply, the service of cases and countercases would often be delayed or prevented by the temporary absence of the opposite counsel.
As the appellee is in default in not having served the countercase within the time limited, the burden was upon him to rebut the presumption of laches. This he has not done, even as to service on defendants' counsel, nor has he shown any reason why the case was not served on the defendant himself in the absence of his counsel.
Had the appellee given the papers to the officer in sufficient time to secure service, and the officer had willfully or negligently failed to serve them, the appellee would not have lost his right, if not guilty of laches, to have service made thereafter, and after the lapse of the prescribed time, if he acted with due diligence. But here there is nothing to excuse the laches in failing to serve the papers by leaving them at the counsel's office or residence, as above provided, or upon the defendant. Indeed, it does not appear that they were handed to an officer at all within the prescribed time. S. v. Johnson, 19 N.C. 852.
In Walker v. Scott, 102 N.C. 487, where the facts as to the service of the case on appeal and countercase within the time were in dispute, the Court held that the facts in regard thereto should be determined in the court below, and when that was done, the Court here passed upon the law applicable to such state of facts. Walker v. (602) Scott, 104 N.C. 481. In the present case these preliminary facts have been found by the judge, and appear in the record. Upon them it appears that the appellee's countercase was not served within the time limited, and it has not been shown that such failure was without laches on the part of the appellee. An agreement between counsel to extend time is often convenient, and sometimes almost necessary, for the judge has no power to grant the extension; besides, it is better in many ways, and saves debate, that the extension of time, if allowed, should be made by agreement. Such agreements, if made in writing, or admitted, are recognized as valid by Rule 39 of this Court, and by repeated decisions. Wade v. New Bern, 72 N.C. 498; Sever v. McLaughlin, 82 N.C. 332; Taylor v. Brower, 78 N.C. 8; Adams v. Reeves, 74 N.C. 106; Rouse v. Quinn, 75 N.C. 354; Walton v. Pearson, 82 N.C. 464; Hutchinson v. Rumfelt, 83 N.C. 441; Scroggs v. Alexander, 88 N.C. 64; Holmes v. Holmes, 84 N.C. 833; Office v. Bland, 91 N.C. 1; McCanless v. Reynolds, 91 N.C. 244; Short v. Sparrow, 96 N.C. 348; Manufacturing Co. v. Simmons, 97 N.C. 89; Graves v. Hines, 106 N.C. 323. In a late case, Mitchell v. Haggard, 105 N.C. 173, the Court not only recognized such agreement, but construed its meaning. When here fifteen days for service of countercase was agreed on, the effect was merely to substitute fifteen days for the five days allowed by statute, leaving the rights of the parties in all other respects, including the manner of service of the countercase, intact. The appellant is, therefore, entitled to have the case on appeal, as stated by him, taken as the true case on appeal, and a writ of certiorari to bring it up will issue as prayed for.