Shober v. . Wheeler

26 S.E. 26, 119 N.C. 471

• Court: Supreme Court of North Carolina
• Decided: September 5, 1896
• Status: Published

Opinion

ClaeK, J.:

When there are several parties on the same side, with identical interests and employing the same counsel, the service by the appellee of his “ case on appeal ” on either one would be sufficient, but here the plaintiffs (appellees) were divided in their interests and employed different counsel. The original plaintiffs were not served with the case on appeal at all. Those served with the case on appeal had been brought into the action. Except as to the parties who were represented in whole or in part by the counsel on whom the case on appeal was served, the appellants are not entitled to a certiorari. As to the parties upon whose counsel the “ case on appeal ” was served in due time, the judge not having settled the case, the certiorari will issue. Such application should always be based upon docketing the rest of the record, and if that is not done upon motion on that ground the certiorari will be denied. Pittman v. Kimberly, 92 N. C., 562; Wiley v. Lineberry, 88 N. C., 68; Suiter v. Brittle, 90 N. C., 19 ; State v. Freeman, 114 N. C., 872. Objection on that ground was not made by the parties on whom the case was served, and as to them the certiorari will issue.

Motion Allowed.