Simmons v. . Allison

Clark, J.: The motion of the appellee to dismiss must be denied as to both grounds. The notice of appeal and entry thereof on the docket having both been made within the ten days after adjournment, it is immaterial that the entry was made after notice given. Indeed, if the notice of the appeal is admitted, or shown to have been given in time, it would avail nothing if the entry was not made at all, for it is only made as record proof. Fore v. Railroad, 101 N. C., 526 : Atkinson v. Railroad, 113 N. C., 581. The Code system exacts business-like diligence, that the rights of the opposite party may be respected, but it did not destroy the former system, based largely on mere technicalities, merely to substitute another set of technicalities and fine distinctions. McDaniel v. Scurlock, 115 N. C., 295. The object of the new system is, as far as possible, to conform to the common sense rules of business life, by requiring diligence in the trial of causes, trying them on their merits and disregarding mere technical objections. As to the second ground of the motion, the sole question being whether the judgment entered below, since our decision in 118 N. C., 763, was in conformity with that opinion, it was eminently proper that the transcript on this appeal should not be encumbered with any part of the record other than the formal recitals usual and necessary to show' that the Court was properly constituted and held, *564 adding thereto the proceedings had subsequent to our, opinion being filed below, and the exceptions made to such subsequent proceedings. Durham v. Railroad, 108 N. C., 399 ; Mining Co. v. Smelting Co., at this Term. Indeed, the appellant, out of abundant caution, sent up and also printed the opinion of this Court (118 N. C., 763), which was an entirely unnecessary expense. The first exception is overruled, for, as the fund in the hands of the receiver is to be paid over to the plaintiffs, it cannot concern the defendants in what manner it should be divided among the plaintiffs. The Code provides (Section 424 (1) ) that the judgment “ may determine the ultimate rights of the parties on each side among themselves.” The second exception is overruled: The allowance to the receiver is a part of the costs of the action, and usually taxable against the losing party. The defendant contends, however, that, being an equitable proceeding, the receiver’s fees should be divided. But, if so, that is a matter in the discretion of the presiding judge, as is now the case also with referee’s fees. Act 1889, Ch. 37. This was not a matter affecting the merits, and was not passed on in the former appeal. The Court in the former appeal, passing upon the merits of the case, pointed out that this was not an action of ejectment, but an equitable proceeding to determine whether the defendants or the plaintiffs should be enjoined from interfering with the other in the control of the church property, that the possession was in the stake-holder (the receiver)by agreement, for the benefit of the true eestuis que ¿rustent, when determined by this litigation. We affirmed the judgment and verdict that the property belonged to the African Methodist Episcopal Zion Church, represented by the plaintiff board of trustees, and that the defendants, claiming as a board of trustees to represent an *565 independent separate body, should be enjoined. Therefore, so much of the present judgment as is set out in the appellants’ sixth and seventh exceptions is now affirmed, but the third, fourth, fifth and eighth exceptions are sustained, so far as the court 1-elow attempted to affirm the damages heretofore assessed, and directed an inquiry to assess further damages against the defendants, in the nature of mesne profits in ejectment. The defendants were notin possession, and, as declared in the former opinion, the title in issue and determined by the verdict and judgment was not between the plaintiffs and defendants as such, but whether the property belonged to the connec-tional system known as the “ African Methodist Episcopal Zion Church,” or belonged to an independent congregation. That was the gist of the action and was fully investigated, ably and elaborately contested, and finally' decided in favor of the former. But, though the plaintiffs were adjudged the proper board to represent the title, the possession was during the litigation in the receiver to be awarded on the result of the trial, and it is a misconception of the former opinion to understand it as affirming any right to collect or assess damages for mesne profits. The former opinion should have been construed on its tenor, as above stated. Though it said' “ affirmed,” it did not declare “no error.” It was meant to affirm on the main point as to the property belonging to the African Methodist Episcopal Zion Church, and directing it to he turned over to the plaintiffs as its board of trustees, and enjoining the representatives of those claiming to hold it for an independent body or congregation. The purport of the opinion negatived any affirmation of the incidental feature of a recovery of mesne profits. Each party will pay his own costs on appeal. Code, Section 527 (2). Error. Modified,