{
  "id": 11268538,
  "name": "BARBER v. JUSTICE",
  "name_abbreviation": "Barber v. Justice",
  "decision_date": "1905-04-04",
  "docket_number": "",
  "first_page": "20",
  "last_page": "23",
  "citations": [
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      "cite": "138 N.C. 20"
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    "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": "137 N. C., 104",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "cite": "125 N. C., 17",
      "category": "reporters:state",
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      "cite": "114 N. C., 176",
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      "category": "reporters:state",
      "reporter": "N.C.",
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      "case_paths": [
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    {
      "cite": "121 N. C., 505",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "123 N. C., 410",
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      "cite": "110 N. C., 600",
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  "last_updated": "2023-07-14T14:59:46.048294+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "BARBER v. JUSTICE."
    ],
    "opinions": [
      {
        "text": "Clark, C. J.\nMotion by appellee for certiorari. Tbe appellant served bis statement of case on appeal witbin tbe statutory time. Appellee\u2019s counter-case was not served until tbe eigbtb day thereafter. Tbe Code, Sec. 550, provides that if tbe appellant\u2019s case is not returned by appellee in five days \u201cwith objections\u201d it shall be \u201cdeemed approved.\u201d State v. Price, 110 N. C., 600 and cases cited. There is no agreement to extend time alleged or admitted and neither this court nor tbe court below can change tbe statutory requirement. Tbe appellee does not allege that be was misled by tbe opposite party but says that he relied upon tbe statement of another member of tbe bar that be bad ten days in which to serve bis counter-case. In a criminal case,State v. Downs, 116 N. C., 1066, tbe court said: \u201cIgnorance of law excuses no one and tbe vicarious ignorance of counsel has no greater value, State v. Boyett, 32 N. C., 336. * * * If ignorance of counsel would excuse violations of tbe criminal law rthe more ignorant counsel could manage to be tbe more valuable and sought for, in many cases, would be bis advise.\u201d If this is true in criminal cases, certainly tbe inadvertence of counsel in a civil case cannot be more effica-cions. In Phifer v. Ins. Co., 123 N. C., 410; Douglas, J. says: \u201cWhile it is always matter of regret that any one should suffer by following the advice of licensed attorneys we cannot ignore the rights of adverse parties, or disturb the orderly procedure of the courts without sufficient cause.\u201d\nIf the judge had notwithstanding \u201csettled\u201d the case, it would not have cured the failure to serve counter-case in time, for the judge could no more extend the statutory time after failure to serve counter-case in time than he could beforehand. Barrus v. Railroad, 121 N. C., 505; McNeill v. Railroad, 117 N. C., 642; Forte v. Boone, 114 N. C., 176. Knowing the above and similar authorities'the judge below did not attempt to settle the case, but the petitioner produces a letter from him that the appellant\u2019s \u201ccase\u201d is exceedingly erroneous and if .given an opportunity he will correct it. The appellee had an opportunity to do this by filing his exceptions to ajojaellant\u2019s case within five days after service thereof and not having done so he waived the right to have the matter submitted to the judge for correction. The case must be \u201cdeemed approved,\u201d says the statute, Code Sec. 550. In Ice Co. v Railroad, 125 N. C., 17 the application was from the appellant fixed with a heavy judgment (and not as here from appellee who can but suffer a new trial,) the facts were exceptional and that case is a precedent which can rarely be followed and only under a like unusual combination of circumstances.\nIt is only when the judge has settled the case, in the exercise of his proper jurisdiction, that upon affidavit of error therein and a letter from the judge that he will correct it if given the opportunity, the court will give him such opportunity. Such letter'from the judge is required, not as a courtesy to him, nor as an acknowledgment of any inherent discretion in him, but because it would usually be doing a vain thing, and most often would result in needless delay, to grant a certiorari to give the judge opportunity to correct a case, already certified by him as correct, unless counsel have had the diligence to procure a letter from the judge that he wishes to make the correction. Cameron v. Power Co,. 137 N. C., 104; Sherrill v. Tel. Co., 116 N. C., 654; Boyer v. Teague, 106 N. C., 571 and other eases cited in Clark\u2019s Code (3 Ed.) p. 936. Here the judge not having been vested with jurisdiction to settle the case, by reason of appellee\u2019s failure to file exceptions to appellant\u2019s case in the time allowed by law, this court cannot set aside the appellant\u2019s rights under the statute and confer jurisdiction hy issuing a certiorari.\nUpon the motion being denied, the appellee in open court assented that a new trial should be awarded, and it is so ordered.\nPer Curiam:\nNew Trial.",
        "type": "majority",
        "author": "Clark, C. J."
      }
    ],
    "attorneys": [
      "J ohn D. Shaw & Son & Qibson, for appellant.",
      "Johnathan Peele and M. L. John, for appellee."
    ],
    "corrections": "",
    "head_matter": "BARBER v. JUSTICE.\n(Filed April 4, 1905).\nAppeal \u2014 Countercase\u2014Time of Service \u2014 Correction\u2014 Certiorari.\n1. Neither this court nor the court below can change, without agreement of both parties, the requirements of section 550 of the Code, which provides that if the appellant\u2019s case on appeal is not returned by appellee in five days \u201cwith objections\u201d it shall be deemed \u201capproved.\u201d\n2. Where appellee\u2019s counter case through inadvertence of counsel, was not served until the eighth day after service of appellant\u2019s ease on appeal, a motion by appellee for certiorari will be denied though appellee produces a letter from the trial judge that appellant\u2019s case is erroneous and if given an opportunity he will correct it.\n3. It is only when the trial' judge has settled the case on appeal, in the exercise of his proper jurisdiction, that this court, upon affidavit of error therein, and a letter from the judge that he wishes to make the correction, will give him such opportunity.\nActioN by W. T. Barber against Lntber Justice, beard by Judge B. B. Peebles and a jury at \"tbe October Term, 1904, of tbe Superior Court of ScotlaND County. From a judgment for tbe defendant, tbe plaintiff appealed. Ap-pellee\u2019s motion for a certiorari being denied, be assented to a new trial.\nJ ohn D. Shaw & Son & Qibson, for appellant.\nJohnathan Peele and M. L. John, for appellee."
  },
  "file_name": "0020-01",
  "first_page_order": 60,
  "last_page_order": 63
}