Board of Education v. . Orr

Clare, C. J. This case came up on tbe appellant’s appeal, the appellee’s counter-case not having been served in time. The defendant moved for a certiorari to send up the appellee’s case as the case on appeal because the appellant had npt sent the papers to the judge to be settled on appeal. The appelleé’s counsel filed an affidavit that there was an oral agreement between himself and the counsel for the appellant to waive the stipulation as to the time of serving the counter-case. The appellant’s counsel filed counter-affidavits denying such agreement. According to the settled practice of this Court, we_ cannot decide when the recollection of counsel in such matters differs. Such agreements should always be in writing to prevent such controversies as this. When, this is not done, the Court will decline to consider the alleged agreement at all. In Graham v. Edwards, 114 N. C., 230, the Court said: “We again repeat, as was lately said in Sondley v. Asheville, 112 N. C., 694: ‘It is to be hoped that hereafter counsel will in *219 every instance put tbeir agreements in writing’ or bave tbem entered of record, when for any reason tbey may think best to depart from tbe plain provisions of tbe statute. If tbey do not care to do tbis, tbe courts will not pass upon controversies as to tbe terms or existence of sucb agreements.’ Our brethren of tbe bar owe it to themselves and to tbe courts to avoid bringing sucb controversies hereafter before tbe courts. Tbeir experience as lawyers must impress upon tbem tbe treachery of memory among tbe very best of men. If not disposed to guard against differences of recollection by tbe easy mode of reducing agreements to writing, or having tbem entered on tbe minutes, tbe courts bave no process to gauge tbe accuracy of tbeir respective recollections.” Tbis case has often been cited since. See citations to tbis case in tbe Anno. Ed. of 114 N. C., 230. Tbe defendant further contends that his counter-case was served in time under tbe agreement of record. Tbis agreement was that tbe “appellant’s case should be served in thirty days and tbe appellee’s' in thirty days thereafter.” Court adjourned on 27 June. Tbe appellant’s case on appeal was served on 27 July. The appellee’s counter-case was served on 27 August, which, there being thirty-one days in July, was tbe 31st day thereafter, and too late. Tbe appellee contends that under Eevisal, 887, as to tbe computation of time, “excluding tbe first day and including tbe last,” tbe day (27 July) on which tbe appellant’s case was served should not be counted and that tbe next day (28 July) should be considered tbe first day and also excluded, and therefore service of tbe counter-case on 27 August was in time. Tbis is ingenious, but not sound. Tbe first day on which tbe counter-case could bave been served was 27 July, tbe day on which tbe appellant’s case was served on tbe appellee, and tbis is excluded. While it was not probable that tbe appellee would serve bis counter-Case on that day, still bad be done so it would bave been legal. Tbe reason the first day is excluded is because it is .usually only part of a day. To give tbe appellee tbe addition of another day by excluding, in addition, 28 July also, would reverse all our holdings, in numerous cases. For instance, wben court adjourned on 27 June, if no notice of appeal was then given, tbe appellant could *220 have given it “in ten days thereafter.” In making the computation, 27 June, the day of adjournment, would be excluded, and notice must have been given, at the latest, some time on 7 July. He would not have been allowed to consider 28 June as the first day and exclude that also, so as to make service on 8 July sufficient. The service of process must be made ten days before the return day, which is on Monday of court. Hence service on Friday is sufficient, because, excluding that day and including Monday, there are ten days. Upon the rule contended for by the appellee of excluding the first day of the ten days, service would have to be made on Thursday. In numerous cases where by agreement “thirty days to serve case of appellant and thirty days thereafter to serve counter-case,” the same computation that we hold in this case has always been observed. Mitchell v. Haggard, 105 N. C., 173; Hardee v. Timberlake, 159 N. C., 552. The first day on which the act could have been done, which here was on 27 July, is excluded and thirty full days, counting 28 July as one of them, expired 26 August. There must always be some time specified either by statute or by agreement, and the failure to observe the time is fatal, whether it is by one day or more. If the specified time is to be exceeded, there is no rule to measure such time that can be allowed in excess. There is an exception when there is fraud or misrepresentation, which is not alleged here, or a waiver, which cannot be shown if denied, unless the waiver is in writing. The case must therefore be heard upon the appellant’s case on appeal which is sent up in the record. Motion denied.