American Floor MacHine Co. v. Dixon , 260 N.C. 732 ( 1963 )

133 S.E.2d 659 (1963) 260 N.C. 732

AMERICAN FLOOR MACHINE CO., a corporation,
v.
Joseph T. DIXON, t/a Dixon Flooring Company.

No. 674.

Supreme Court of North Carolina.

December 19, 1963.

Wade H. Penny, Jr., Henry Bane, Durham, for plaintiff appellant.

C. Horton Poe, Jr., Durham, for defendant appellee.

HIGGINS, Justice.

The plaintiff presents two assignments of error:

"1. The Superior Court of Durham County was not the lawful and proper forum in which to determine whether the plaintiff appellant failed to perfect in due time its appeal to the Superior Court as provided in the Orders of the Durham County Civil Court.

"2. If it is assumed that the Superior Court of Durham County could properly determine the issue in regard to plaintiff appellant's perfecting its appeal, then, based on the record proper and those facts found by the Court, the Order entered by the Court holding that the plaintiff appellant failed to perfect in due time its appeal to the Superior Court was in error."

The Durham County Civil Court appears to have been established under Article 35, Chapter 7, General Statutes. Its jurisdiction—civil only—is concurrent (1) with that of justices of the peace, (2) with the Superior Court in all cases wherein the amount demanded, exclusive of interest, does not exceed $1,500.00. The court shall be open for business whenever matters before the court require attention, "except for the trial of issues of fact requiring a jury and the trial of contested causes wherein the county civil court is exercising jurisdiction concurrent with the Superior Court, which shall be heard in term." The judge is authorized to fix terms after consulting with the clerk and members of the county bar. The record does not disclose what has been done with respect to terms. "Appeals may be taken from the county civil court within ten days * * * to the superior court * * * for errors assigned in matters of law or legal inference, in the same manner as is provided for appeals from the superior court to the Supreme Court, except (1) The appellant shall cause a copy of the statement of case on appeal to be served on the respondent within thirty days from the entry of the appeal taken, and the respondent, within fifteen days after such service, shall return the copy with his approval or specific amendments endorsed or attached; if the case be approved by the respondent, it shall be filed with the clerk as a part of the record; if not returned with objections within the time prescribed, it shall be deemed approved: Provided, that the judge trying the case shall have the power, in the exercise of his discretion, to enlarge the time in which to serve statement of case on appeal and exceptions thereto or counter statement of case." (emphasis added)

The plaintiff invoked the jurisdiction of the Durham County Civil Court to force collection of a claim of $296.90. At the time summons was issued it applied for and was granted time to file its complaint. After jury trial it was determined that it was indebted to the defendant in the sum of $437.08. At the time it gave notice of appeal to the Superior Court it induced the judge of the county civil court to exercise his discretion in doubling the time fixed by the statute for serving the case on appeal. Thereafter, on the plaintiff's motion, the court granted two additional extensions.— To each of these extensions the defendant excepted. Finally the case on appeal was served on defendant's counsel on the day after the last extension expired.

The rules governing appeals from the county civil to the superior court conform as near as may be to those governing appeals from the superior to the Supreme Court. It seems, therefore, the judge of the county court had authority, in his discretion, to extend the time to serve the case on appeal in the first instance. The extension could only be for a reasonable time. We do not say in doubling the statutory period he exceeded his discretionary authority. But in passing on the question and fixing the time at 60 days within which the appeal should be served, he was thereafter without authority to do more than to settle the case on appeal in the event a countercase was served or exceptions were filed.

As a general rule, an appeal takes a case out of the jurisdiction of the trial court. Thereafter, pending the appeal, the judge is functus officio. "* * * (A) motion in the cause can only be entertained by the court where the cause is." Exceptions to the general rule are: (1) notwithstanding notice of appeal a cause remains in fieri during the term in which the judgment was rendered, (2) the trial judge, after notice and on proper showing, may adjudge the appeal has been abandoned, (3) the settlement of the case on appeal. Hoke v. Atlantic Greyhound Corp., 227 N.C. 374, 42 S.E.2d 407.

The authority of the trial judge to settle the case on appeal may be invoked only by the service of a countercase or by filing exceptions to the appellant's statement of case. Otherwise the appellant's statement becomes the case on appeal. G. S. § 1-282, 283; Wiggins v. Tripp, 253 N.C. 171, 116 S.E.2d 355. "``The right of appeal is not an absolute right, but is only given upon compliance with the requirements of the statute.' * * * ``rules requiring service to be made of case on appeal within the allotted time are mandatory, not directive.' " Little v. Sheets, 239 N.C. 430, 80 S.E.2d 44.

When the judge of the county civil court entered his order fixing 60 days as the time for the service of the case on appeal, he exhausted his authority over the case and was thereafter functus officio, except to fulfill his statutory obligation to see that a proper record is sent up for review and the obligation to settle the cases devolves only in the event the appellee serves a countercase or files exceptions. In the absence of a case on appeal served within the time fixed by the statute, or by valid enlargement, the appellate court will review only the record proper and determine whether errors of law are disclosed on the face thereof. Roberts v. Greensboro-Fayetteville Bus Co., 198 N.C. 779, 153 S.E. 398. The appeal removed the case to the Superior Court for all purposes except the certification of a correct record. Any further extensions of time within which the record was due in the Superior Court could only come from the Superior Court. Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126.

"It appears, without contradiction, that appellant's statement of case on appeal was not served within the time allowed by agreement of counsel; hence the judge was without authority to settle the case. Lindsey v. Supreme Lodge of Knights of Honor, 172 N.C. 818, 90 S.E. 1013 * * *. And his attempted settlement of the case, without finding that service within the stipulated time had been waived, did not cure the defect." Smith v. Smith, 199 N.C. 463, 154 S.E. 737.

Both Judge Carr, in holding the plaintiff had not perfected its appeal and by ordering the record proper sent up, and Judge Latham, in finding that no error existed on the face of that record, were acting as appellate judges. They appear to have followed the established rules.

The judgment of the Superior Court of Durham County is

Affirmed.