Houston v. Lumber Co. , 136 N.C. 328 ( 1904 )

The summons issued against the "Greensboro Lumber Co. and J. T. B. Shaw, receiver." It was served upon "J. T. B. Shaw, receiver of the Greensboro Lumber Company." The action was dismissed as to the receiver on demurrer because leave of Court had not been obtained to bring action against the receiver. There was no answer or demurrer filed as to the company and judgment against it was taken by default and inquiry. After the adjournment for the term, but within ten days thereafter, the defendant entered a special appearance and gave notice of appeal.

A party to an action can take his appeal by serving notice within ten days after adjournment of Court. The (329) Code, sec. 549; Russell v. Hearne, 113 N.C. 361; Davisonv. Land Co., 120 N.C. 259. But the appeal must be taken by a party to the action, and the entry of a special appearance did not authorize counsel so appearing to appeal. An appeal by counsel "appearing specially" is no appeal. Clark v. Mfg. Co., 110 N.C. 111.

The appeal, even if it had been regularly taken, was premature. If not duly served with process, the defendant "could either have disregarded the further proceedings of the Court, which would have been a nullity, or it could have had its exception noted and proceeded with the trial." Guilfordv. Georgia Co., 109 N.C. 312; Mullen v. Canal Co., 112 N.C. 109, and numerous cases cited in Clark's Code (3 Ed.), p. 738; Brown v. Nimocks,126 N.C. 808; Cooper v. Wyman, 122 N.C. 784, 65 Am. St., 731.

Appeal dismissed.