Clark v. Deloach Mills Manufacturing Co.

14 S.E. 518, 110 N.C. 111

• Court: Supreme Court of North Carolina
• Decided: February 5, 1892
• Status: Published

Opinion

Clark, J.:

The defendant isa non-resident corporation, it was not served with process, and did not appear and answer at the trial before the Justice. It had the right to appeal after notice of the judgment. The Code, § 876. It appears, however, that the defendant attempted to appeal, not from the judgment generally, but by a limited notice of appeal in the nature of a special appearance. We know of no authority or reason for such practice. An appeal must be from the judgment rendered. If after the judgment, the defendant appearing specially for the purposes of the motion, had moved to set aside .the judgment for defective publication, and the motion had been denied, an appeal would have carried up only that ruling (Finlayson v. American Accident Association, 109 N. C., 196); or the defendant might have applied for a recordari (McKee v. Angel, 90 N. C., 60; Caldwell v. Beatty, 69 N. C., 365); or if appearing specially at the trial the defendant had moved to dismiss, and on refusal of such motion had caused its exception to be noted, and had then proceeded to defend on the merits, it would not on an appeal have lost its right to insist on its special appearance. Guilford County v. Georgia Company, 109 N. C., 310; Plemmons v. Improvement Co., 108 N. C., 614. But here the defendant neither appeared specially at the trial and moved to dismiss, nor made any motion afterwards, but attempted to appeal specially, and to have the Court pass upon a ruling as to the regularity of the publication which the magistrate did not make nor was given by the defendant any opportunity to make. If the appeal had any effect at all it was a general appearance by the defendant, and placed it regularly in Court if not already there. It may be that the Judge should have so held. But the plaintiff is not appealing from his failure to do so, and it is only open to us to say that the defendant cannot assign as error that the Court held that an attempted appeal by counsel “appearing specially ” for such purpose only was no appeal. If error, it is beneficial to the defendant, since it is now open to him to make a motion to set aside the judgment, if so advised, under The Code, §220, or possibly for a recordari in the nature of a writ of false judgment. Caldwell v. Beatty, supra.

Besides this, the notice of appeal was not served at all— the appeal not having been taken in open Court (The Code, §877), and the notice not having been served by an officer. The Code, § 597; State v. Johnson, 109 N. C., 852.

Affirmed.