Texas Co. v. Beaufort Oil & Fuel Co.

CoNNOR, J. Defendant’s motion to dismiss this appeal, for that no “case on appeal,” as prescribed by statute or by the rules of this Court, appears in the record, is denied. The record, certified to this Court by the clerk of the Superior Court of Carteret County, contains a “case on appeal,” signed by attorneys for plaintiff appellant, and filed in the office of said clerk on II July, 1930. Service of this “case on appeal,” was accepted by attorneys for defendant appellee, on 17 July, 1930. The receipt of a copy of said “case on appeal” is acknowledged, in writing, by attorneys for appellee. It does not appear that exceptions or counter-ease was filed by said attorneys. The case on appeal, prepared by attorneys for appellant, and served on attorneys for appellee within the time allowed by the judge, is deemed approved by them, in the absence of exceptions or countercase. C. S., 643, S. v. Palmore, 189 N. C., 538, 127 S. E., 599; S. v. Carlton, 107 N. C., 956, 12 S. E., 44. Where appellant’s statement of his case on appeal is sent to this Court, as a part of the transcript of the record, duly certified by the clerk of the Superior Court, and it appears that said statement of case on appeal was duly served on appellee within the time prescribed by statute, or allowed by the judge,- and it further appears that no exceptions or countercase was served by the appellee on the appellant, it stands as the case on appeal in this Court. Booth v. Ratcliffe, 107 N. C., 6, 12 S. E., 112; Russell v. Davis, 99 N. C., 115, 5 S. E., 895. Plaintiff’s motion, made when the action was called for trial at June Term, 1930, that defendant be denied the right to present its defense at said trial, for that defendant had failed to file the bond required by the order made at March Term, 1930, was in effect a motion that defendant’s answer be stricken from the record, and that plaintiff recover judgment by default, for want of an answer. No terms were imposed by the court, or accepted by the defendant when the order was made at the March Term. It did not appear that defendant’s failure to file the bond was wilful or contemptuous. At best, the motion was addressed to the discretion of the judge presiding at June Term. In no event, was plaintiff entitled to a favorable ruling on its motion as a matter of law. Finance Co. v. Hendry, 189 N. C., 549, 127 S. E., 629; Lumber Co. v. Cottingham, 173 N. C., 323, 92 S. E., 9; and 168 N. C., 544, 84 S. E., *496 864. The ruling of the -judge is not reviewable on plaintiff’s appeal to this Court. Power Co. v. Lessem Co., 174 N. C., 358, 93 S. E., 836. It appears from the judgment dismissing the action as of nonsuit, that the learned judge, who presided at the trial, was of opinion that in the absence of allegation and evidence tending to show a default or breach by defendant of some provision in its agreement with plaintiff, with respect to its occupancy and use of the premises described in the license agreement, plaintiff is not entitled to recover in this action. In this, we think, he was in error. This is not an action to cancel the license agreement, under the provisions of paragraph 5. It is plaintiff’s contention that defendant’s term under said agreement expired on 1 September, 1929, as the result of the notice given pursuant to the provisions of paragraph 2. In accordance with this contention, plaintiff demands judgment for the summary ejectment of defendant from the premises, and for the recovery of reasonable rent since 1 September, 1929. As there, was evidence at the trial, tending to show that defendant entered into possession under the license -agreement, and that notice as required by paragraph 2 of the agreement was given by plaintiff to defendant, there was -error in the judgment dismissing the action as upon nonsuit. Defendant’s motion for judgment of nonsuit should have been denied, and the evidence submitted to the jury upon appropriate issues. The judgment is, therefore, Reversed.