Houston v. Lumber Co.

48 S.E. 738, 136 N.C. 328, 1904 N.C. LEXIS 268

• Court: Supreme Court of North Carolina
• Decided: November 1, 1904
• Status: Published

Opinion

Clark, C. J.

The summons issued against the “Greensboro Lumber Co. and J. T. B. Shaw, receiver.” It was served upon “J. T. B. Shaw, receiver of the Greensboro /Lumber Company.” The action was dismissed as to the receiver on demurrer because leave of Court had not been obtained to bring action against the receiver.. There was no answer or demurrer filed as to the company and judgment against it was taken by default and inquiry. After the adjournment for the term, but within ten days thereafter, the defendant entered a special appearance and gave notice of appeal.

A party to an action can take bis appeal by serving notice witbin ten days after adjournment of Court. The Code, sec. 549; Russell v. Hearne, 113 N. C., 361; Davison v. Land Co., 120 N. C., 259. But tbe appeal must be taken by a party to tbe action, and tbe entry of a special jippearance did not authorize counsel so appearing to appeal. An appeal by counsel “appearing specially” is no appeal. Clark v. Mfg. Co., 110 N. C., 111.

Tbe appeal, even if it bad been regularly taken, was premature. If not duly served witb process, tbe defendant “could either have disregarded tbe further proceedings of tbe Court, which would have been a nullity, or it could have bad its exception noted and proceeded witb tbe trial.” Guilford v. Georgia Co., 109 N. C., 312; Mullen v. Canal Co., 112 N. C., 109, and numerous cases cited in Clark’s Code (3 Ed.), p. 738; Brown v. Nimocks, 126 N. C., 808; Cooper v. Wyman, 122 N. C., 784, 65 Am. St. Rep., 731.

Appeal Dismissed.