A. L. Arundell Co. v. Ivey Mill Co.

AlleN, J. It was within tbe discretion of tbe judge to allow tbe notice of appeal to be given after tbe ease was docketed in tbe Superior Court. Marsh v. Cohen, 68 N. C., 283; State and Alice Wells v. Johnson, 109 N. C., 852. In tbe last case tbe Court says: “Any hardship which might, under any circumstances, be entailed on an appellant by failure to serve notice in a legal manner and within tbe statutory time is removed by tbe discretion reposed in tbe appellate court to permit notice to be given after that time.” Tbe case of Abell v. Power Co., 159 N. C., 348, and others like it, relied on by tbe plaintiff, are not applicable, because in them tbe motion to dismiss was on tbe ground that tbe appeal bad not been docketed according to law, and in this case tbe basis of tbe motion is that notice of appeal was not given. If there was error in admitting carbon copies of tbe written order, it was cured when tbe plaintiff, in order to make out its case against tbe defendant, introduced tbe original. Tbe evidence of tbe conversation with tbe salesman' of tbe plaintiff is competent. It does not vary or change tbe written order, and is important and material only as explanatory of tbe *241 delay in making a test of tbe oil, in order tbat tbe defendant might avail itself of tbe provision in tbe 'order to return if unsatisfactory after a test. If tbe evidence is competent, it follows tbat there was no error in adverting to it in tbe charge. No error.