{
  "id": 8654936,
  "name": "D. F. SMITH, et al. v. M. C. SMITH, et al.",
  "name_abbreviation": "Smith v. Smith",
  "decision_date": "1896-09",
  "docket_number": "",
  "first_page": "311",
  "last_page": "314",
  "citations": [
    {
      "type": "official",
      "cite": "119 N.C. 311"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "118 N. C., 355",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8653244
      ],
      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "114 N. C., 228",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8649801,
        8649822
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      "case_paths": [
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    {
      "cite": "113 N. C., 275",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "case_paths": [
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    {
      "cite": "112 N. C., 694",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8651738
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      "case_paths": [
        "/nc/112/0694-01"
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    },
    {
      "cite": "105 N. C., 173",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8652461
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/105/0173-01"
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    },
    {
      "cite": "74 N. C., 432",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8682979
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/74/0432-01"
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  "analysis": {
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    "ocr_confidence": 0.487,
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  "last_updated": "2023-07-14T16:25:50.492694+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "D. F. SMITH, et al. v. M. C. SMITH, et al."
    ],
    "opinions": [
      {
        "text": "Clare, J.;\nThis case differs widely from Willis v. Railroad, at this Term. There the agreement, which was admitted, was that the papers \u201c should be sent \u201d to the appellee\u2019s counsel. They were accordingly sent to him by express, and there was ample time, if he had promptly notified the appellant\u2019s counsel that be had not intended to waive service, for the case to have been served -by an officer. This Court held that, upon the admitted agreement, the appellant\u2019s counsel had reasonable ground to \u25a0understand that service had been waived ; and, besides, the appellee\u2019s counsel, under such circumstances, by delaying several days after he received notice that the papers were in the express office for him, and till too late for legal service, to notify appellee\u2019s counsel of the mistake, was estop-ped from insisting that the ease could not be legally served after the time limited.\nIn the present case,'the agreement, which is in writing, provides : \u201c Next term of Brunswick court fixed for settlement of the case on appeal, appellants to serve case on the plaintiff at least a week before said court.\u201d This certainly extended the time of service, whioh is not denied, but so far from waiving service, it contemplates service, which means, of course, legal service. No other agreement is averred, but the appellants rely upon an affidavit that Mr. Cutlar on the last day (Saturday) upou which the case could have been served asked Mr. Rountree in Wilmington to accept service, who replied that he had no authority to do so, and to mail the papers to the other counsel in Whiteville, who three days thereafter notified the appellant\u2019s counsel that they would not accept service. As Mr. Rountree had no authority to accept service, he could not reasonably have been understood as waiving service, and Mr. Cutlar should at once have had the case legally served, especially as the agreed time for service was about to expire. Nor is there any estoppel, upon the appellee\u2019s counsel by their failure to promptly return the case ; for, if returned by the next mail, the time for service would have expired, and their conduct could not have misled the appellant\u2019s counsel to their detriment. In these two essential particulars the case differs from Willis v. Railroad. Affidavits are filed bj the appellee\u2019s counsel, reciting, among other things that the appellant\u2019s counsel had given them notice that \u201c no favors would be given or received, \u201d that Mr. Cutlar had since stated to them that his real reason for sending the case by mail was that he did not know that the law required service by an officer, and expressly denying any written or verbal agreement to waive the service, or for service other than by an officer having been made between counsel. Indeed the appellants seem to rely greatly upon \u201c the liberal practice heretofore prevailing among the members of the bar in the southeastern part of the State.\u201d PeabsoN, C. J., in Wilson v. Hutchinson, 74 N. C., 432, gave notice to the bar that this plea would not avail against the express terms of the law, and this has been since cited and approved. This Court could not constitute itself a tribunal to decide the limits (sure to be controverted) of the \u201c liberal practice heretofore obtaining; in this district, \u201d nor if such custom were admitted could it avail to nullify the statute. All that the Court can do, when the parties have stipulated to disregard the statute, is to construe the meaning of the agreement, if in writing, or even if verbal, provided it is admitted. Mitchell v. Haggard, 105 N. C., 173. If an alleged verbal agreement of counsel is denied (as in this case) the Court has uniformly refused the invidious task of weighing the affidavits of counsel. Sondley v. Asheville, 112 N. C., 694; LaDuc v. Moore, 113 N. C., 275; Graham v. Edwards, 114 N. C., 228; Roberts v. Partridge, 118 N. C., 355. Rule 39 of this Court, which has long been in force, is as follows: \u201c The Court will not. recognize any agreement of counsel in any case unless the same shall appear in the record, or in writing filed in the cause in this Court.\u201d Gentlemen of the bar are the sole judges of the courtesies they shall extend to each other, and it is best every way that they should be. Like Gallio, we \u201c will not judge of such matters.\u201d The Court will only administer legal rights.\nOertiorari Denied.",
        "type": "majority",
        "author": "Clare, J.;"
      }
    ],
    "attorneys": [
      "Messrs. JohnD. Bellamy and Shepherd c& Busbee, for the motion.",
      "Messrs. J. B. SchulJeen and Mac Rae d\u00e9 Day, contra."
    ],
    "corrections": "",
    "head_matter": "D. F. SMITH, et al. v. M. C. SMITH, et al.\nPractice \u2014 Appeal\u2014Case on Appeal \u2014 Agreement of Counsel \u2014 Service of Case on Appeal.\n1. The legal mode of service of a case on appeal is not waived by an agreement of counsel for the appellee that the appellant is \u201c to serve the case on \u201d appellee by a certain time.\n2. \"Where one of several attorneys for the appellee, on being asked to accept service of the ease on appeal, said that he had no authority to do so, and advised that the case be sent to the other counsel; Held, that such direction was not a waiver of the legal mode of service so as to authorize a service by mail.\n3. \"Where service of a case on appeal is made by mail, on the last day for service, instead of by an officer, the failure to promptly return the case does not estop the appellee to deny the legality of the service, since, if the'case had been promptly returned, it would have been too late to have it legally served.\n4. This Court will not pass on or recognize alleged verbal agreements of counsel when they are denied.\nMotioN for a writ of certiorari as a substitute for lost appeal from the judgment of Greene, J., in an action tried at Fall Term, 1896, of Columbus Superior Court. The facts and the grounds of the motion ,are stated in the opinion of Associate Justice ClaeK.\nMessrs. JohnD. Bellamy and Shepherd c& Busbee, for the motion.\nMessrs. J. B. SchulJeen and Mac Rae d\u00e9 Day, contra."
  },
  "file_name": "0311-01",
  "first_page_order": 339,
  "last_page_order": 342
}