{
  "id": 8652461,
  "name": "GEORGE H. MITCHELL v. T. W. HAGGARD",
  "name_abbreviation": "Mitchell v. Haggard",
  "decision_date": "1890-02",
  "docket_number": "",
  "first_page": "173",
  "last_page": "175",
  "citations": [
    {
      "type": "official",
      "cite": "105 N.C. 173"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "102 N. C., 487",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8650019
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      "case_paths": [
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    {
      "cite": "99 N. C., 115",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8649452
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      "case_paths": [
        "/nc/99/0115-01"
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    {
      "cite": "66 N. C., 406",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11277447
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      "case_paths": [
        "/nc/66/0406-01"
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  "analysis": {
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  "last_updated": "2023-07-14T15:50:46.302543+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "GEORGE H. MITCHELL v. T. W. HAGGARD."
    ],
    "opinions": [
      {
        "text": "Ct.a-r.ic, J.:\nThe counsel below in this case signed the following agreement: \u201cIt is agreed that plaintiff may have thirty daj's to \u00f1le his case on appeal from the adjournment of Court, and the defendant thirty days thereafter, May 5, 1888 \u201d The Court adjourned on that day. The appellant served his case on appellee b-tween May the 12th and 15th. The appellee\u2019s counsel files an affidavit that he served his counter-case on appellant\u2019s counsel on -June the 25th, alleges that no application has ever been made to the Judge to settle the case on appeal, and thereupon asks to dismiss the appeal, or rather to affirm the judgment \u2014 as was done in Kirkman v. Dixon, 66 N. C., 406 \u2014 or, at least, to have the appellant\u2019s case as amended by his exceptions taken as the case. Russell v. Davis, 99 N. C., 115.\nThe affidavit of appellant\u2019s counsel controverts this and asserts that no counter-case was served. Neither appellant\u2019s case, nor any counter-case, is on file in the Clerk\u2019s office, but appellant alleges that a copy of his case is on file in the Clerk\u2019s office, and asks for a certiorari to send this up as the true case on appeal.\nSimilar agreements are common on the circuit, but no case has heretofore arisen calling for a construction. The ambiguity in the one above set out attaches to the meaning to be given to the word \u201cthereafter.\u201d If it meant thirty days after the service of appellant\u2019s case, then, though appellee served his counter-case on June 25th, as he alleges, he was too late, and the appellant\u2019s case should be certified alone as the \u201ccase on appeal.\u201d If, however, \u201cthereafter\u201d means thirty days after the expiration of the first thirty days, then defendant\u2019s counter-case, if served on June 25th, was in time, and the appellant was direlict in not \u201cimmediately\u201d requesting the Judge to settle the case as required by \u00a7550 of The Code.\nThe written agreement of counsel substituted the time specified therein \u2014 -of thirty days to appellant to serve case and thirty days thereafter to serve counter case \u2014 for the statutory ten and five days, respectively, provided by chapter 161, Acts 1889, amendatory of The Code, \u00a7550. The five days (formerly three) in which appellee can serve his counter-case is to be counted from the service of appellant\u2019s case on appeal, and not from the expiration of the ten days (formerly five). We are of opinion that the proper construction of the agreement would give appellee thirty days' in which to make out his counter-case, i. e., counting from service of appellant\u2019s case. If he wished for the other arrangement he could easily have specified \u201c thirty days after adjournment of Court, to serve case on appeal, and sixty days from adjournment to serve counter case,\u201d or use other unambiguous language.\nInasmuch, however, as the appellee evidently understood the words differently, and has been (not unreasonably) misled therein, the Court would ordinarily continue the case till the controverted fact of service of a counter-case is found by the Judge below. Walker v. Scott, 102 N. C., 487. But in this instance neither the appellant\u2019s case nor the alleged counter-case is on file, and a further controversy will doubtless arise as to the contents of the defendant\u2019s counter-case (if it should be found to have been served), and possibly as to the correctness of the alleged copy of the plaintiff\u2019s case now on file. Under the peculiar circumstances of this case, the Court will remand it, with leave to appellant to serve a new case on appeal within ten days after a certified copy of this opinion is filed in'the office of the Clerk of the Superior Court for Bertie County. If the appellee does not assent to such case, he will, in five daj's after the service thereof, serve his counter-case, and the case will be \u201csettled\u201d by the -Judge who tried the cause, under the statutory provisions. The Clerk of said Court will notify counsel of both parties immediately upon receipt of the certified opinion of its purport. Upon \u201csettlement of the case\u201d in accordance herewith a duly certified copy will be transmitted to this Court.\nRemanded.",
        "type": "majority",
        "author": "Ct.a-r.ic, J.:"
      }
    ],
    "attorneys": [
      "Messrs. B. B. Peebles and IF. D. P-rudem, for the plaintiff.",
      "Mr. D. C. Winston, for the defendant."
    ],
    "corrections": "",
    "head_matter": "GEORGE H. MITCHELL v. T. W. HAGGARD.\nSdtlivg Case on Appeal \u2014 Agreement of Counsel.\n1. When counsel misunderstand terms of written agreement as to time of settling case on appeal, and there is reasonable ground for being misled thereby, and the case, as served by appellant, is lost, the case will be remanded with leave to parties to serve case and counter-case de novo, and upon disagreement, case on appeal \u25a0 to be settled by the Judge, nunc pro tuna.\n2. An agreement \u201cplaintiff may have thirty days to file his case on appeal from adjournment of Court, and defendant thirty days thereafter,\u201d entitles defendant to thirty days after service of appellant\u2019s case.\nCivil ACTION, tried before Graves, J, at Spring Term, 1888, of Bertie Superior Court\nMotion by appellant for a certiorari. Motion by defendant to dismiss the appeal.\nThe facts appear in the opinion.\nMessrs. B. B. Peebles and IF. D. P-rudem, for the plaintiff.\nMr. D. C. Winston, for the defendant.\nHead-notes by Claiuc, J."
  },
  "file_name": "0173-01",
  "first_page_order": 199,
  "last_page_order": 201
}