Rollins v. . Love

MerrijioN, L, (after stating the facts). This appeal was taken at August .Term, 1886, of the Superior Court of the county of Buncombe, but was not docketed in this Court within the first eight days of the October Term, 1886, thereof, as it ought regularly to have been, and not until December 22d, 1886, during the Term, but after the call of the docket of the district to which it belonged. The appellees moved at the present Term to dismiss it, upon the ground that it was not docketed in due time. The motion cannot be allowed. This appeal ought to have been brought up within the first eight days of the last October Term of this Court, but that it was not, is not ground for dismissing it — this only worked a continuance. As it was not docketed as required by Rule 2, par. 7, within the first eight days of the Term, the appellees might, after the perusal of the docket, have moved to docket and dismiss the appeal, as allowed by Rule 2, par. 8, but they did not choose *214 to do this, and so lost their opportunity to do so; it was too late after the appeal was docketed. Barbee v. Green, 91 N. C., 158; Cross v. Williams, Ibid., 496. As a second ground of the motion to dismiss the appeal, it was insisted that the undertaking upon appeal was insufficient. This we cannot consider, because the statute, (Acts 1887, ch. 121,) require that twenty days’ notice of a motion to dismiss an appeal upon such ground must be given the appellant as therein prescribed, and such notice has not been given. It applies by its teims to appeals pending at the time of its passage. This statutory regulation is one that simply affects the course of procedure, that the Legislature might have made applicable to appeals before this appeal was taken, and as it is merely such a regulation, it does not destroy or impair any vested right of the appellees. Obviously, the judgment against the intestate of the appellant, of which he complains in his answer to the rule upon him to show cause, &c., was not vacated as to him, by the appeal of his co-defendant Henry, and it does not appear that he appealed, as it should do if he did, and as it does not, the presumption is he did not. So that the judgment, certainly so far as appears, was rendered against him in his life-time, and remained operative and effectual against him at the time of his death. Nor can we see how in any aspect of the case, the statute of limitation was a bar to the motion of the appellees, if it were a proper one to be made, as to the judgment. It seems that the appellant made no question as to the propriety and competency of the motion of the appellees, in the absence of valid objections to the judgment, and we are not called upon to express any opinion, nor do we, in that respect. The alleged mental incapacity of the intestate to execute the undertaking and thereby bind himself, upon which the appellees recovered judgment, was not pertinent or material in opposition to their motion, because, the judg *215 ment was upon its face', regular and valid, and its integrity could not be thus attacked. Such incapacity was ground upon which the appellant might have attacked! the judgment directly in that action by a proper proceeding, as\ it is still pending, or by independent action, if it were ended. Williams v. Hartman, 92 N. C. 236; Fowler v. Poor, 93 N. p., 466. It was insisted on tfye argument before us, that the Court might — ought—to have treated the answer to the rule to show cause as a motio^i or petition in the action, directed against the judgment. \Perhaps the Court might have done so upon proper application, .and after proper and necessary amendments to the ansjwert But the motion and matters pertinent to it were before the Court — to these the attention of the parties and Count were directed, and moreover, the appellant did not ask tipo Court to so treat his answer. In case he had done sov ulpon such application, the allegations ought to ’have been made more specific, and the appellees should! have had reasonable opportunity to answer them, and /thus in an orderly way, have raised issues of law and fact, the ¡appellant being the actor and so treated. Thus theproceed-ing would have been substantially a different, one from that before the Court. Ordinarily, it is the office of counsel — not that of the Court — to advise and direct litigants as to the proper methods of demanding and seeking redress through the Courts. It may be, that the appellant can yet attack the judgment directly, in the way indicated, but as to that, no question is before us, and we express no opinion in that respect. In our judgment the assignment of error in the record is not well founded, and the judgment must be affirmed. To the end that further proceedings may be had in the action, let this opinion be certified to the Superior Court. No error. Affirmed.