Willis v. Atlantic & Danville Railway Co. , 119 N.C. 718 ( 1896 )

This is not the case of a verbal agreement of counsel, which if denied the Court will not consider. Rule 39; Sondley v. Asheville,112 N.C. 694; Graham v. Edwards, 114 N.C. 228. But here both sides agree substantially as to what passed. It was agreed that in lieu (719) of the time prescribed by The Code the appellant should be allowed twenty days to serve the case on appeal and the appellee twenty days to serve a countercase. In reply to an inquiry of the appellant's counsel, "To whom shall I send the case?" one of the appellee's counsel said, "Send to J." By this arrangement the appellant's counsel understood, and not unreasonably, that The Code requirement as to service was waived, as well as the time limit, and sent the case on appeal and the judge's notes to "J." by express six days before the agreed twenty days expired, and also wrote him a letter by the same mail notifying him of the fact. The appellee's counsel insists that he did not intend to waive service by an officer, but he must have perceived from the appellant's counsel sending the case by express and the purport of his letter that the latter had so understood him, and if he had promptly notified the appellant's counsel of his mistake there would have been ample time to have corrected the error by causing service to be made by an officer. But he did not give such notification till another letter had been written him and the twenty days time had expired.

We can give no weight to the alleged "liberal practice prevailing in the district," which cannot avail against the statute (Wilson v. Hutchinson,74 N.C. 432), but from the undenied facts there was reasonable misapprehension on the part of the appellant's counsel, and the writ ofcertiorari should issue. Parker v. R. R., 84 N.C. 118; Graves v. Hines,106 N.C. 323; Walton v. Pearson, 83 N.C. 309.

The appellee will have until five days after the certificate of this opinion is filed in the office of the Clerk of the Superior Court of CASWELL to serve his countercase or exceptions to the appellant's case. If the parties cannot agree upon a case, it will then be (720) settled by the judge who tried the case, in the manner provided by The Code.

PETITION GRANTED.

Cited: Smith v. Smith, ante, 311, 313.