Rouse v. . Quinn

75 N.C. 354

• Court: Supreme Court of North Carolina
• Decided: June 5, 1876
• Status: Published

Opinion

Bynum, J.

The proceedings for perfecting the appeal were regular up to the time when the defendant filed his excep- . tions to the case as stated by the plaintiff.

Instead, then, of calling upon the presiding Judge to settle the case within the time and in the manner prescribed by law, 0. C. P., secs. 299 to 314, the plaintiff persisted in his attempt to agree on a case, with the opposing counsel, until he lost his appeal by lapse of time. It does not appear from the record that the defendant waived the bar of the lapse of time, and that he did waive it is expressly denied by him.

The propriety of the rule governing appeals, as laid down in Wade v. The City of Newbern, 72 N. C. Rep., 498, and approved in Adams v. Reeves, 74 N. C. Rep., 106, is apparent in this case. We have the unseemly case of two counsel of this Court on opposing sides, making sworn statements, contradicting each other upon a matter which should have appeared of record, or not been denied. We have said that in such cases this Court will not decide between them. Their opposing oaths leave the matter at large, and the provisions of the Code, as expounded in the cases cited, must prevail.

The motion is denied. The plaintiff must pay the costs of the motion. The appeal is dismissed for the want of a case.

Pee Cukiam. Appeal dismissed.