Higdon v. Nantahala Power & Light Co.

Supreme Court of North Carolina

Higdon v. Nantahala Power & Light Co.

175 S.E. 710, 207 N.C. 39, 1934 N.C. LEXIS 373

CourtSupreme Court of North Carolina

DecidedSeptember 19, 1934

StatusPublished

Cited by10 cases

This text of 175 S.E. 710 (Higdon v. Nantahala Power & Light 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

Higdon v. Nantahala Power & Light Co., 175 S.E. 710, 207 N.C. 39, 1934 N.C. LEXIS 373 (N.C. 1934).

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Opinion

BbosdeN, J.

Does tbe carbon copy of tbe letter of tbe secretary of tbe Industrial Commission to tbe attorneys of defendant constitute a notice of appeal as contemplated by law?

C. S., Michie’s Code, 8081 (ppp), provides that “either party to tbe dispute may, within thirty days from tbe date of such award, or within thirty days after receipt of notice to be sent by registered mail of such award, but not thereafter, appeal from tbe decision of said Commission to tbe Superior Court . . . for errors of law, under tbe same terms and conditions as govern appeals in ordinary civil actions,” etc. It is obvious that tbe Compensation Act provides no specific machinery for appeal to tbe Superior Court, except tbe words, “under tbe same terms and conditions as govern appeals in ordinary civil actions.” It has been held in this State that where no procedure is prescribed by statute for appeals, tbe rules regulating appeals from a justice of tbe peace are applicable and control. This principle was first expressed in Blair v. Coakley, 136 N. C., 405, 48 S. E., 804, as follows: “In tbe absence of any procedure prescribed by statute, we must proceed by analogy to tbe practice in other like cases, so that tbe intent and purpose of the Legislature may be effectuated as near as may be, and that tbe right of appeal *41 may be preserved to tbe citizen, and at tbe same time not abused. It is well, therefore, to adopt tbe rules regulating appeals from justices’ courts as being more nearly analogous to those which should govern in cases like the one under review, and more likely to carry out the intention of the Legislature and less apt to work injustice to the parties. ¥e think, further, that those rules are reasonable and necessary to prevent delay, and they can easily be observed.” See S. v. Carroll, 194 N. C., 37, 138 S. E., 339.

The statutes regulating appeals from judgments rendered by justices of the peace are C. S., 1530 and 1531. The carbon copy of a letter from the secretary of the Industrial Commission to the attorney for the defendant cannot be construed as a compliance with the applicable statutes. McIntosh, in North Carolina Practice and Procedure, p. 776, section 677, says: “An appeal is the act of the party and not of the court, and it requires the entering of the appeal and giving notice in the manner provided by statute.” In the case at bar the appealing party did not give notice as required by law. The trial judge therefore ruled correctly.

Affirmed.

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BbosdeN, J.

Does tbe carbon copy of tbe letter of tbe secretary of tbe Industrial Commission to tbe attorneys of defendant constitute a notice of appeal as contemplated by law?

C. S., Michie’s Code, 8081 (ppp), provides that “either party to tbe dispute may, within thirty days from tbe date of such award, or within thirty days after receipt of notice to be sent by registered mail of such award, but not thereafter, appeal from tbe decision of said Commission to tbe Superior Court . . . for errors of law, under tbe same terms and conditions as govern appeals in ordinary civil actions,” etc. It is obvious that tbe Compensation Act provides no specific machinery for appeal to tbe Superior Court, except tbe words, “under tbe same terms and conditions as govern appeals in ordinary civil actions.” It has been held in this State that where no procedure is prescribed by statute for appeals, tbe rules regulating appeals from a justice of tbe peace are applicable and control. This principle was first expressed in Blair v. Coakley, 136 N. C., 405, 48 S. E., 804, as follows: “In tbe absence of any procedure prescribed by statute, we must proceed by analogy to tbe practice in other like cases, so that tbe intent and purpose of the Legislature may be effectuated as near as may be, and that tbe right of appeal *41 may be preserved to tbe citizen, and at tbe same time not abused. It is well, therefore, to adopt tbe rules regulating appeals from justices’ courts as being more nearly analogous to those which should govern in cases like the one under review, and more likely to carry out the intention of the Legislature and less apt to work injustice to the parties. ¥e think, further, that those rules are reasonable and necessary to prevent delay, and they can easily be observed.” See S. v. Carroll, 194 N. C., 37, 138 S. E., 339.

The statutes regulating appeals from judgments rendered by justices of the peace are C. S., 1530 and 1531. The carbon copy of a letter from the secretary of the Industrial Commission to the attorney for the defendant cannot be construed as a compliance with the applicable statutes. McIntosh, in North Carolina Practice and Procedure, p. 776, section 677, says: “An appeal is the act of the party and not of the court, and it requires the entering of the appeal and giving notice in the manner provided by statute.” In the case at bar the appealing party did not give notice as required by law. The trial judge therefore ruled correctly.

Affirmed.

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175 S.E. 710, 207 N.C. 39, 1934 N.C. LEXIS 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higdon-v-nantahala-power-light-co-nc-1934.

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