State v. . Ray

Supreme Court of North Carolina

State v. . Ray

175 S.E. 109, 206 N.C. 736, 1934 N.C. LEXIS 298

CourtSupreme Court of North Carolina

DecidedJune 20, 1934

StatusPublished

Cited by14 cases

This text of 175 S.E. 109 (State v. . Ray) 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

State v. . Ray, 175 S.E. 109, 206 N.C. 736, 1934 N.C. LEXIS 298 (N.C. 1934).

Pincite

Opinion

Stacy, 0. J.

The trial was held at the December Term, 1933, of Orange Superior Court, which convened 11 December. An appeal was prayed and notice duly given. Within fifteen days thereafter, to wit, on 23 December, the defendant made out and served his statement of case on appeal. On 6 January following, the solicitor prepared and served exceptions or objections to the defendant’s statement. This was too late in the absence of any extension or waiver of time. 0. S., 643. None appears of record. Hence the defendant’s statement became the statement of case on appeal. S. v. Humphrey, 186 N. C., 533, 120 S. E., 85; S. v. Price, 110 N. C., 599, 15 S. E., 116; Texas Co. v. Fuel Co., 199 N. C., 492, 154 S. E., 829; Barrus v. R. R., 121 N. C., 504, 28 S. E., 187; Carter v. Bryant, 199 N. C., 704, 155 S. E., 602.

Objections to appellant’s statement of case on appeal, not served within the time fixed by statute (10 days after service of appellant’s case), by order of court, or by agreement of counsel, may be disregarded as unavailing or nugatory. Smith v. Smith, 199 N. C., 463, 154 S. E., 737; Cummings v. Hoffman, 113 N. C., 267, 18 S. E., 170.

Of course, where there is a controversy as to whether the exceptions were served within the time fixed or allowed, or service within such time waived, it is the duty of the trial court to find the facts, hear motions and enter appropriate orders thereon. Smith v. Smith, supra; Holloman v. Holloman, 172 N. C., 835, 90 S. E., 10; Barrus v. R. R., supra. But here, there are no controverted facts. Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126.

It appears in appellant’s statement of case on appeal that certain pleadings in civil actions brought against the defendant, involving the funds he is alleged to have embezzled, were offered in evidence, over objection, as proof of the facts admitted or alleged therein. This was in violation of the statute, O. S., 533, and entitles the defendant to a new trial. S. v. Dula, 204 N. C., 535. It is so ordered.

New trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Stacy, 0. J.

The trial was held at the December Term, 1933, of Orange Superior Court, which convened 11 December. An appeal was prayed and notice duly given. Within fifteen days thereafter, to wit, on 23 December, the defendant made out and served his statement of case on appeal. On 6 January following, the solicitor prepared and served exceptions or objections to the defendant’s statement. This was too late in the absence of any extension or waiver of time. 0. S., 643. None appears of record. Hence the defendant’s statement became the statement of case on appeal. S. v. Humphrey, 186 N. C., 533, 120 S. E., 85; S. v. Price, 110 N. C., 599, 15 S. E., 116; Texas Co. v. Fuel Co., 199 N. C., 492, 154 S. E., 829; Barrus v. R. R., 121 N. C., 504, 28 S. E., 187; Carter v. Bryant, 199 N. C., 704, 155 S. E., 602.

Objections to appellant’s statement of case on appeal, not served within the time fixed by statute (10 days after service of appellant’s case), by order of court, or by agreement of counsel, may be disregarded as unavailing or nugatory. Smith v. Smith, 199 N. C., 463, 154 S. E., 737; Cummings v. Hoffman, 113 N. C., 267, 18 S. E., 170.

Of course, where there is a controversy as to whether the exceptions were served within the time fixed or allowed, or service within such time waived, it is the duty of the trial court to find the facts, hear motions and enter appropriate orders thereon. Smith v. Smith, supra; Holloman v. Holloman, 172 N. C., 835, 90 S. E., 10; Barrus v. R. R., supra. But here, there are no controverted facts. Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126.

It appears in appellant’s statement of case on appeal that certain pleadings in civil actions brought against the defendant, involving the funds he is alleged to have embezzled, were offered in evidence, over objection, as proof of the facts admitted or alleged therein. This was in violation of the statute, O. S., 533, and entitles the defendant to a new trial. S. v. Dula, 204 N. C., 535. It is so ordered.

New trial.

Cite This Page — Counsel Stack

Bluebook (online)

175 S.E. 109, 206 N.C. 736, 1934 N.C. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ray-nc-1934.

Opinion

Related

Cite This Page — Counsel Stack