Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-11-09
Votes Of Cases Recently Deciaed,
Which are of Interest to 81
Our PEOPLE.
DI'G;EsTED BY ". B s. IN 8.
.stEixcluslyely5 for virx,nlani !, Pilot,
H T. 4 ICE M. co. ". Ri & IA. AL
e III S.5 r CO
A supreme Court of North Carolina.
October 10, 1899. 3. 20


99 8. SUD ID a CERTIoRARI WHEN IT
IS: n ;t APPEARS OARS THAT PETITIONERS
s q. COUNSEL TIA ALLIED TO PREPARE
TI1p CASE FOR AN q APPEAL.
4. w WITHIN THE rTIMB FIXED BY
S. LAW: THAT THE DELAY. WAS
.3s CAUSED BY THD ILLNESS OF
TWO OF HIS COUNSEL AND THE
APPOINTMENT TO AN 3 IMPoR-
TANT OFFICB OF THE THIRD:
/. THAT THE COURT REFUSED TO
HEAR 1E THE Appeals: THAT ALL,
CHE COUNSEL WE'RE INsoI,-
VENT AND THAT PETITIONER
= WAS WITHOUT OTHER REMEDY
The whole case appears. from the
opinion of the court.
The court says:
On the 18th day of October. 1894
plaintiff commenced an action against
oetendnnt DIN the superior court of
wake county, IN which 1t alleged that
the defendant wrongfully and negli-
genoiy burned Its ice factory In the
city or Raleigh. The defendant denied
these allegations, and alleged con-
trfputory negligence on the part of
plaintiff. This action was tried Mt
Aprll term, 1899, of said court, when,
Inc plaintiff recovered and obtained
Judgment for $4,000. From this judg-
ment the defendant appealed, notice OF
appeal was waived in open court, and
appeal bond fixed at $50. which was
given by defendant; and the defend
ant also gave a supersedeas bond for
che stay Of execution until the appeal
should be heard in the supreme court
by consent of parties. forty days were
given to the appellant to make UP the
case on aDDeal, and thirty days for
aPPeliee 10 except or make up counter
case. The time allowed expired on
June Il5th, and defendants case on
appeal was not served or rendered un
Gil the 19th-four days after the time
I allowed by the agreement had ex
PRED. The plaintiff refused to accent
service OF defendants case on appeal
Tor the reason that it.; had not been
.enoeged within the time agreed upon;
ana. while plaintiff made out counter
case, 1t insisted on It's objection as IN
time, and objected to the Judge who
presided ut the, trial settling the case
on appeal. The defendant, after no
tice to plaintiff. applied to the Judge
70 settle the case on appeal. But
plaintiH attended, and there objected
TO; the Judges settling the case, for
the reason that defendants case on an
peal had not been rendered or served
In time; and upon this state OF facts
the Judge held that he had no power
to settle the case on appeal, and de-
clined to.do so. stating that he had
his notes of the trial, and could settle
the case I'm a very short time If he
hao the power. and that he would do
"A r n rfptNn IT, -
term OF this court, and upon notice TO
the plaintiff, the defendant filed It's
petition asking for writ of certlorarI
sworn to by Mr.. St. John {vice-presi-
dent OF defendant company and the
atfidavfts of j. c. McRae and w. H
Day were also filed On support of said
petition. It appears from the petition
that the defendant employed ]. b
Batchelor. w. II. Day, and ]. G. Nc
dtae, three reputable ftt7vyers- y7J11tt
standing, residents of the city, of good
eigh, and practicing attorneys of the
Raleigh bar. to attend to and manage
said action for it: that the defendant
caused the appeal to be taken, and
that 1t gave the appeal bond required
by law, as fixed fby the court; that 1t
also gave supersedeas bond for the
stay of execution; that this was alI
done in good faith, as 1t was advised
that defendant had good ground for
said appeal, upon which it expected to
/, obtain new trial, and that 1t never
abandoned, or thought of abandoning
Its appeal; that all three of said at-
torneys are insolvent, and that de-
PENDANT is without remedy or redress
except by the intervention of this
court and the Issuance of the writ of
: certiorari, as prayed in the petition.
The attorneys, Day and McRae. adj
init that they are insolvent, and It. Is
not disputed by plaintiff or any one
that the attorney, Bachelor, Is also In
solvent The said McRae states in his
affidavit that Is was agreed between
the attorneys that he should prepare
and serve the case on appeal; that
on account of his own bad health and
sickness in his family, he was not able
TO 90 so within the time agreed upon
He also alleges that Mr.. Bachelor was
only consulting counsel and that Mr.
Day had been elected or appointed to
an important public office, which took
n large portion of his time. The plain
tiff admits that MIR. AfcRae was unwell
part OF the time, and that he had
sickness in his family, but alleges that
he was In his law office the most Of
the time. The plaintiff also alleges
that Mr.. Bachelor was more than
mere consulting counsel; that he took
an active part in the trial of the case
examined some Of The witnesses. and
argued the case to tie Jury. PLAINTIFF
admits that Mr.. Day has been an
pointed to an important public office
but It alleges that he continued his
practice as an attorney, and that It
was the duty Of both Bachelor and
!. Day to make up the case on appeal If
1IcRac could not do SO.
r. This is a substantial statement Of the