McNeill v. Raleigh & Augusta Air Line Railroad , 117 N.C. 642 ( 1895 )

Notice of appeal was properly given and in apt time, hence a motion to dismiss the appeal would not lie, and in fact was not made. The appellant's case on appeal, unless service was accepted, could only be served by an officer. Forte v. Boone, 114 N.C. 176; Allen v. Strickland, 100 N.C. 225;S. v. Johnson, 109 N.C. 852; S. v. Price, 110 N.C. 599. The failure of service in due time, if it were made to appear, could not be cured even by the Judge settling the case (Forte v. Boone, supra) and when the case is not settled by the Judge, it must appear affirmatively that the case or counter case was legally served and in due time to avail the party relying upon it. Mfg. Co. v. Simmons, 97 N.C. 89; Peebles v. Braswell,107 N.C. 68; Howell v. Jones, 109 N.C. 102. The attempted service by the Clerk was a nullity (Cummings v. Hoffman, 113 N.C. 267) as was also the service by a proper officer after the time limited by law. Rosenthal v.Roberson, 114 N.C. 594; Cummings v. Hoffman, supra. Had there been counter affidavits that in fact there had been service by a proper officer in due time, the case might be continued that, on motion below, the Judge should find and certify the facts, as inWalker v. Scott, 102 N.C. 487. Such is not the case here, but simply an attempted service within the proper time by one not authorized to make it, and then service by a proper officer, but (644) after the time limited for service had expired. Both these acts being null and of no effect, and there being nothing to excuse the laches, as in Watkins v. R. R., 116 N.C. 961, there is nothing before us except the record proper. On inspection we find no error therein and must affirm the judgment. Lyman v. Ramseur, 113 N.C. 503.

Affirmed.

Cited: Smith v. Smith 119 N.C. 317; Westbrooks v. Hicks, 121 N.C. 132;Barnes v. R. R., ib., 505; Cowan v. Lumber Co., 126 N.C. 1153;Barber v. Justice, 138 N.C. 22.