Carswell v. . Talley

Stacy, 0. J., after stating the case.: The demurrer was properly overruled, and the judgment must be affirmed on authority of Chemical Co. v. Floyd, 158 N. C., 455; Robinson v. Williams, 189 N. C., 256, and cases there cited. The pertinent holding in Chemical Co. v. Floyd is stated in the 5th head note as follows: “A complaint is not objectionable for a misjoinder of parties which alleges a joint wrong as to two of the defendants in misapplying and misappropriating the moneys of the plaintiff, and seeks to set aside a deed made by one of them to his wife with the intent of delaying and defrauding his creditors, inclusive of the plaintiff’s demand.” The instant case is controlled by the principle announced in the Floyd case. A question of procedure was presented on a preliminary motion by counsel for appellee to have this appeal heard at the present term, which probably merits a word in regard to the rules. *39 Tbe case was beard at tbe February Term, 1926, Mecklenburg Superior Court, on tbe demurrer interposed by tbe defendants to tbe plaintiff’s complaint, wbicb was overruled. Notice of appeal was given in open court, and, by consent, it was ordered that tbe, summons, complaint and demurrer should constitute tbe case on appeal to tbe Supreme Court. Tbe case on appeal was prepared by appellants and certified to tbis Court by tbe clerk of tbe Superior Court of Mecklenburg County, at tbe instance of counsel for appellee, on 31 March, 1926, more than fourteen days before tbe call of tbe docket from tbe Fourteenth District, tbe district to which tbe case belongs. Counsel for appellants were cognizant of tbe fact that tbe record of tbe case on appeal bad been certified to tbis Court, and, on 3 April, counsel for appellee notified counsel for appellants that they would move to have tbe appeal dismissed if briefs were not filed in time for tbe ease to be beard when tbe docket from tbe Fourteenth District was called on 20 April, 1926. Counsel for appellee, instead of moving to dismiss tbe appeal, as they might have done (Brafford v. Reed, 124 N. C., 345), lodged a motion to have tbe case beard at a subsequent date during tbe present term of court. Tbis was resisted by counsel for appellants on tbe ground that as tbe case was tried below since tbe beginning of tbis term, tbe appeal was not properly before tbe Court, but would regularly stand for argument at tbe Fall Term, 1926, and lodged a counter-motion for a continuance until that time. On denial of tbe motion for a continuance, tbe case was subsequently submitted under Rule 12 without argument. Counsel for appellants were in error in thinking that tbe case was not properly before tbe Court for bearing at tbe Spring Term, 1926. Clegg v. R. R., 132 N. C., 292; Caldwell v. Wilson, 121 N. C., 423. True, tbe appeal was not required to be brought to tbis term, but having been docketed here fourteen days before tbe call of tbe district to wbicb it belongs, it was regularly on tbe calendar for bearing at tbe present term. Rule 5, Vol. 185, p. 788, as amended, Vol. 189, p. 843; Trust Co. v. Parks, 191 N. C., 263; Avery v. Pritchard, 106 N. C., 344. Nor can it make any difference that tbe record or transcript on appeal was forwarded to- tbis Court at tbe instance of counsel for appellee. As remarked by Furches, J., in Brafford v. Reed, 124 N. C., 345, “when a ease on appeal comes into tbe possession of tbe clerk, it is bis duty to docket it at once, and it will be deemed to be docketed from that time.” When tbe transcript of tbe ease on appeal reaches tbe clerk, it then becomes a record of tbis Court, and is no longer subject to tbe control of tbe parties or their counsel. S. v. Farmer, 188 N. C., 243. Affirmed.