State v. . Price , 110 N.C. 599 ( 1892 )

Clark, J.:

If the appellee files no exceptions within the proper time to appellant’s case, the latter should be certified to this Court, and will be taken here as the case on appeal. Russell v. Davis, 99 N. C., 115; Simmons v. Andrews, 106 N. C., 201; Booth v. Ratcliffe, 107 N. C., 6; State v. Carlton, 107 N. C., 956. This, however, would not apply where the failure to serve the counter-case in time was without laches on the part of the appellee. Russell v. Koonce, 102 N. C., 485; Mitchell v. Haggard, 105 N. C., 173, and cases cited in Simmons v. Andrews, supra. The appellee contends that such was the case here, because the counter-case was in Monroe, and would have been served in time, but that this was prevented and made impossible by the absence of appellant’s counsel. This contention loses sight of the fact that service of the counter-case could not be prevented by such absence. .The Code, § 597 (1), provides that ‘‘ notices and other papers” may be served on the attorney “ during his absence from his office by leaving the paper with his clerk therein, or .with a person having charge thereof, or when there is no person in the office, by leaving it between the hours of six in the morning and nine in the evening in a conspicuous place in the office, or if it be not open to admit of such service, then by leaving it at the attorney’s residence with some person of suitable age and discretionsection 597 (2) provides for service of papers upon the party himself (Turner v. Holden, 109 N. C., 182); section 597 (4) provides that this mode of service shall not apply to “a summons or other proce-s, or of any paper to bring a party into contempt.” It seems clear, therefore, that it applies to all other papers, including cases and counter-cases on appeal. It is reasonable that it should be so, since these must be served within a limited time; and if the statute did not apply, the service of cases and counter-cases would often be delayed or prevented by the temporary absehee of the opposite counsel.

As the appellee is in default in not having served the counter-case within the time limited, the burden was upon him to rebut the presumption of laches. This he has not done, even as to service on defendants’ counsel, nor has he shown any reason why the case was not served on the defendant himself in the absence of his counsel.

Had 'the appellee given the papers to the officer in sufficient time to secure service, and the officer had wilfully or negligently failed to serve them, the appellee would not have lost his right, if not guilty of laches, to have service made thereafter, and after the lapse of the prescribed time, if he acted with due diligence. But here there is nothing to excuse the laches in failing to serve the papers by leaving them at the counsel’s office or residence, as above provided, or upon the defendant. Indeed, it does not appear that they were handed to an officer at all within the prescribed time. State v. Johnson, 109 N. C., 852.

In Walker v. Scott, 102 N. C., 487, where the facts as to the service of the case on appeal and counter-case within the time were in dispute, the Court held that the facts in regard thereto should be determined in the Court below, and when that was done, the Court here passed upon the law applicable to such state of fact. Walker v. Scott, 104 N. C., 481. In the present case, these preliminary facts have been found by the Judge, and appear in the record. Upon them it appears that the appellee’s counter case was not served within the time limited, and it has not been shown that such failure was without laches on the part of the appellee. An agreement between counsel to extend time is often convenient, and sometimes almost necessary, for the Judge has no power to grant the extension ; besides, it is better in many ways, and-saves debate, that the extension of time, if allowed, should be made by agreement. Such agreements, if made in writing, or admitted, are recognized as valid by Rule 89 of this Court, and by repeated decisions. Wade v. Newbern, 72 N. C., 498; Sever v. McLaughlin, 82 N. C., 332; Taylor v. Brower, 78 N. C., 8; Adams v. Reeves, 74 N. C., 106; Rouse v. Quinn, 75 N. C., 354; Walton v. Pearson, 82 N. C., 464; Hutchinson v. Rumfelt, 83 N. C., 441; Scroggs v. Alexander, 88 N. C., 64; Holmes v. Holmes, 84 N. C., 833; Office v. Bland, 91 N. C., 1; McCanless v. Reynolds, 91 N. C., 244; Short v. Sparrow, 96 N. C., 348; Manufacturing Co. v. Simmons, 97 N. C., 89; Graves v. Hines, 106 N. C , 323. In a late case, Mitchell v. Haggard, 105 N. C , 173, the Court not only recognized such agreement, but construed its meaning. AVhen here fifteen days for service of counter-case was agreed on, the effect was merely to substitute fifteen days for the five days allowed by statute, leaving the rights of the parties in all other respects, including the manner of service of the counter-case, intact. The appellant is, therefore, entitled to have the case on appeal, as stated by him, taken as the true case on appeal, and a writ of certiorari to bring it up will issue as prayed for.