The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-08-01
A $4,000 DAMAGE SUI
ATTORNEYS FAILED TO FILE
CASE ON APPEAL
SERVICE AFTER THs lime Fixed IS VOlp
Judge of Superior Court Has no Auhori-
ty in Law Settle C,se on Appeal
If ospsrs are not Served With
in line RI nuiref
in line RI quired.

Judge Brown decides the uysicnic Ice
Company's damage suit appeal petition
against the Seaboard Air Line. From
this decision the railroad company APP
peals, and the matter will be taken up
to the Supreme court.
1t will be remembered that some
five years ago the Hygienic Ice Com
pany's factory, near the Union depot,
was burned. The ice company alleged
that the cause of the fire was a spark
from one of the Seaboard's engines, ana
brought suit to recover damages for it.
The case was recently decided against
the railroad, the jury bringing in Il YER
dict for $4,000. An appeal was taken
and the railroad was given forty days
to file its case on appeal. This 1t
falled to do, filing the papers four days
after the time had expired.
As this negligence put the case out
of court and brought tfle suit TO IA
sudden termination, the attorneys for
the railroad made a motion before Judge
Brown for reinstatement of the case.
This motion was argued Saturday at
Oxford, and the decision of it was YES
terday sent here to the clerk of court.
Judge Browns decision, in full is as
follows:
This cause coming on to be heard at
chambers on July 18th, 1899, by previous
agreement between COUNSEL the defen-
dants counsel moved the court to settle
the case on appeal to the Supreme
court and to direct the clerk to file the
same along with the transcript of the
record proper The plaintiffs counsel
objected upon the ground that the case
ON appeal had not been served within
the time required by. and that therefore
the service of the case was null and
void and being null and void the Judge
of the Superior court had no power to
proceed further in the matter. The de-
PENDANTS counsel also moved the court
In its discretion to extend the time for
the service of the case on appeal and
permit the same to be served now, and
offered number of affidayits in sup
port of both of said motions.
The court after hearing the matter
finds as follows, to wit:
That this case was tried at the April
term, 1899, of the Superior court of
Wake county; the final Judgment was
rendered on May 9th. the last day Of
said term being Saturday afternoon
of the second week; that the defendant
prayed an appeal on that day and gave
notice to open court and in all respects
perfected its right of appeal, except the
service of the case on appeal. BY agree
ment of counsel for plaintiff and defen-
dant entered upon the record. the de-
PENDANT was given forty days within
which to serve its case on appeal. Tie
case was not served within the forty
days, but was served ON June 10Th, 1899.
The plaintiffs council filed specific
amendments and counter case, but re-
serving their objection in the following
language taken from the plaintiffs coun-
ter case:
ITO the Raleigh and Augusta Air Line
Railroad Company the defendant above
named:
You are hereby notified that the
plaintiffs, Henry Boyer and Henry S.
Boyer, co-partners trading as Hygienic
Pate Ice Manufacturing Company, do
protest against an attempted service of
a case on appeal to the Supreme court
in the above entitled action, for that
the time within which such case upon
appeal could have been served under the
order of the court (which appears on
the minutes in said case in the office of
the clerk of the Superior court for said
county, and is as follows: Appeal by
defendants to the Supreme court. No
tice waived. Bond fixed at $50. BY
consent appellant allowed 40 days to
serve its case on appeal, and appellees
allowed 80 days thereafter to serve their
counter casel expired on June 18th.
1879 and there was no attempt at such
service until June 10TH 1899, (the April
term, 1899, of said court. at which said
cause was tried, and the Judgment rem
dered expired by its own limitation on
May 9th, 1890.
"The plaintiffs further give notice that
they will object to any settlement OF
any case ON appeal by the judge or any
attempt to set forth any case on appeal
IN the record of said action. The al
legged case on appeal served on plaintiffs
June 18th, 1899, is not approved, but IS
returned attached hereto.
Without waving any objection to the
time of the service of the case, but ex-
pressly reserying and insisting upon the
same and all other rights, the plaintiffs
say that the alleged case on appeal, even
had it been served in time, is not ac-
curate and correctly stated and plaintiffs
except and object thereto, &C."
The court is of the opinion and so
finds as a matter of law that the service
of the case after the expiration of the
limit as agreed upon and set out in the
record, is null and void; that there is no
discretionary power lodged in the judges
of the Superior court whereby they can
grant relief to the appellant in such
cases.
That a judge of the Superior court
has no authority in law to settle the
case on appeal, and order its transmits
sion TO the Supreme court where the
case on appeal has not been served by
the appellant within the time required by
the statute or by the stipulation of the
parties; that the presiding judge, if he
had any discretionary power in the
premises would exercise it now in be-
"a CTNRIh foyInfanis and CbHdrsa