Hamby v. Callahan Construction Co.

Supreme Court of North Carolina

Hamby v. Callahan Construction Co.

128 S.E. 146, 189 N.C. 747, 1925 N.C. LEXIS 395

CourtSupreme Court of North Carolina

DecidedJune 3, 1925

StatusPublished

Cited by2 cases

This text of 128 S.E. 146 (Hamby v. Callahan Construction Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hamby v. Callahan Construction Co., 128 S.E. 146, 189 N.C. 747, 1925 N.C. LEXIS 395 (N.C. 1925).

Pincite

Opinion

Stacy, C. J.

This case was tried at the July Term, 1924, Ashe Superior Court. From a verdict and judgment in favor of plaintiff for $500, the defendant gave notice of appeal to the Supreme Court.

The defendant was allowed thirty days to prepare and serve its statement of ease on appeal, and the plaintiff was allowed thirty days "thereafter to serve his exceptions or countercase. Appellant failed to serve its case within the time allowed, because it was under the impression that the extension was for forty-five days instead of thirty days; no appeal bond was filed as required by law; the case was not brought to the next succeeding term of this Court; motion to dismiss for failure to comply with Rules 24 and 28 was allowed 31 March, 1925; motion' to reinstate was denied 12 May, 1925. This is the second motion to reinstate and for certiorari. No valid excuse is given for failure to comply with the rules.

It is patent from a bare recital of the facts that .the motion and application must be denied. S. v. Farmer, 188 N. C., 243; Byrd v. Southerland, 186 N. C., 384. To discuss the case would only be to elaborate the obvious. Cui honof "When litigants resort to the judiciary for the settlement of their disputes they are invoking a public agency, and they should not forget that rules of procedure are necessary, and must be observed, in order to enable the courts properly to discharge their duties. We are not permitted to abandon the rules of practice nor will they be construed so as to favor the negligent and penalize the diligent party. Battle v. Mercer, 188 N. C., 116.

Motions denied.

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Stacy, C. J.

This case was tried at the July Term, 1924, Ashe Superior Court. From a verdict and judgment in favor of plaintiff for $500, the defendant gave notice of appeal to the Supreme Court.

The defendant was allowed thirty days to prepare and serve its statement of ease on appeal, and the plaintiff was allowed thirty days "thereafter to serve his exceptions or countercase. Appellant failed to serve its case within the time allowed, because it was under the impression that the extension was for forty-five days instead of thirty days; no appeal bond was filed as required by law; the case was not brought to the next succeeding term of this Court; motion to dismiss for failure to comply with Rules 24 and 28 was allowed 31 March, 1925; motion' to reinstate was denied 12 May, 1925. This is the second motion to reinstate and for certiorari. No valid excuse is given for failure to comply with the rules.

It is patent from a bare recital of the facts that .the motion and application must be denied. S. v. Farmer, 188 N. C., 243; Byrd v. Southerland, 186 N. C., 384. To discuss the case would only be to elaborate the obvious. Cui honof "When litigants resort to the judiciary for the settlement of their disputes they are invoking a public agency, and they should not forget that rules of procedure are necessary, and must be observed, in order to enable the courts properly to discharge their duties. We are not permitted to abandon the rules of practice nor will they be construed so as to favor the negligent and penalize the diligent party. Battle v. Mercer, 188 N. C., 116.

Motions denied.

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Bluebook (online)

128 S.E. 146, 189 N.C. 747, 1925 N.C. LEXIS 395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamby-v-callahan-construction-co-nc-1925.

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