Caldwell Land & Lumber Co. v. Chester

Clark, C. J. In tbis case, upon tbe verdict of tbe jury coming in, judgment was rendered at tbe April Term of Avery, wbicb adjourned 30 April, 1915. By agreement 90 days was allowed appellants to serve case on appeal and plaintiff allowed 60 days thereafter to file exceptions or counter-ease. Tbe defendants served their case on appeal 8 September, 1915. Tbe plaintiff contested that tbis was too late, and served their exceptions on 19 October, without, however, waiving their right to object that tbe service of tbe case on appeal was too late. The judge properly held that tbe appellants’ case was served too late and refused to settle tbe case on appeal. Tbe appellants contend that they were in time because by consent tbe judgment was to be signed in vacation and was signed on 19 June, being less than 90 days before tbe service of tbe case on appeal. Tbe judgment was rendered on tbe verdict before tbe adjournment of tbe court, 30 April. It is not necessary that a judgment be signed when it is rendered in open court. Bond v. Wool, 113 N. C., 20, and cases there cited. Tbe appellants do not distinguish between tbe signing in vacation of a judgment rendered at term and tbe rendering of a judgment in vacation by consent, Revisal, 559. In tbe latter case there is no judgment to appeal,from, and it is not known in whose favor it is until it is rendered; hence tbe time in wbicb to appeal and to serve case on appeal is counted from tbe filing of such judgment in tbe clerk’s office. But when, as in tbis case, tbe judgment is rendered in term tbe party cast has notice and must give bis notice of appeal and serve bis case in tbe prescribed, or agreed, time from tbe adjournment of that term. Tbe appellants were in court when tbe judgment was rendered and gave notice of appeal. By agreement they bad 90 days in wbicb to serve their case on appeal, and failed to do so. Tbe motion for a certiorari must be denied, and tbe motion of tbe appellees to docket and dismiss under Rule 17 is allowed. Appeal dismissed.