{
  "id": 11270173,
  "name": "BOARD OF EDUCATION OF GRAHAM COUNTY v. B. M. ORR et als.",
  "name_abbreviation": "Board of Education v. Orr",
  "decision_date": "1912-12-14",
  "docket_number": "",
  "first_page": "218",
  "last_page": "220",
  "citations": [
    {
      "type": "official",
      "cite": "161 N.C. 218"
    }
  ],
  "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": "159 N. C., 552",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8660248
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/159/0552-01"
      ]
    },
    {
      "cite": "105 N. C., 173",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8652461
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/105/0173-01"
      ]
    },
    {
      "cite": "112 N. C., 694",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8651738
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/112/0694-01"
      ]
    },
    {
      "cite": "114 N. C., 230",
      "category": "reporters:state",
      "reporter": "N.C.",
      "weight": 2,
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 336,
    "char_count": 5919,
    "ocr_confidence": 0.479,
    "pagerank": {
      "raw": 4.03580807328026e-08,
      "percentile": 0.23912108389330808
    },
    "sha256": "b7f3f07bd9401fad7fd6c8709e1b0dc0433523e899664bc6644e205f02d632c4",
    "simhash": "1:961c25b586ce2f54",
    "word_count": 1046
  },
  "last_updated": "2023-07-14T14:55:28.078438+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "BOARD OF EDUCATION OF GRAHAM COUNTY v. B. M. ORR et als."
    ],
    "opinions": [
      {
        "text": "Clare, C. J.\nThis case came up on tbe appellant\u2019s appeal, the appellee\u2019s counter-case not having been served in time.\nThe defendant moved for a certiorari to send up the appellee\u2019s case as the case on appeal because the appellant had npt sent the papers to the judge to be settled on appeal. The appelle\u00e9\u2019s counsel filed an affidavit that there was an oral agreement between himself and the counsel for the appellant to waive the stipulation as to the time of serving the counter-case. The appellant\u2019s counsel filed counter-affidavits denying such agreement. According to the settled practice of this Court, we_ cannot decide when the recollection of counsel in such matters differs. Such agreements should always be in writing to prevent such controversies as this. When, this is not done, the Court will decline to consider the alleged agreement at all.\nIn Graham v. Edwards, 114 N. C., 230, the Court said: \u201cWe again repeat, as was lately said in Sondley v. Asheville, 112 N. C., 694: \u2018It is to be hoped that hereafter counsel will in every instance put tbeir agreements in writing\u2019 or bave tbem entered of record, when for any reason tbey may think best to depart from tbe plain provisions of tbe statute. If tbey do not care to do tbis, tbe courts will not pass upon controversies as to tbe terms or existence of sucb agreements.\u2019 Our brethren of tbe bar owe it to themselves and to tbe courts to avoid bringing sucb controversies hereafter before tbe courts. Tbeir experience as lawyers must impress upon tbem tbe treachery of memory among tbe very best of men. If not disposed to guard against differences of recollection by tbe easy mode of reducing agreements to writing, or having tbem entered on tbe minutes, tbe courts bave no process to gauge tbe accuracy of tbeir respective recollections.\u201d Tbis case has often been cited since. See citations to tbis case in tbe Anno. Ed. of 114 N. C., 230.\nTbe defendant further contends that his counter-case was served in time under tbe agreement of record. Tbis agreement was that tbe \u201cappellant\u2019s case should be served in thirty days and tbe appellee\u2019s' in thirty days thereafter.\u201d Court adjourned on 27 June. Tbe appellant\u2019s case on appeal was served on 27 July. The appellee\u2019s counter-case was served on 27 August, which, there being thirty-one days in July, was tbe 31st day thereafter, and too late. Tbe appellee contends that under Eevisal, 887, as to tbe computation of time, \u201cexcluding tbe first day and including tbe last,\u201d tbe day (27 July) on which tbe appellant\u2019s case was served should not be counted and that tbe next day (28 July) should be considered tbe first day and also excluded, and therefore service of tbe counter-case on 27 August was in time. Tbis is ingenious, but not sound. Tbe first day on which tbe counter-case could bave been served was 27 July, tbe day on which tbe appellant\u2019s case was served on tbe appellee, and tbis is excluded. While it was not probable that tbe appellee would serve bis counter-Case on that day, still bad be done so it would bave been legal. Tbe reason the first day is excluded is because it is .usually only part of a day.\nTo give tbe appellee tbe addition of another day by excluding, in addition, 28 July also, would reverse all our holdings, in numerous cases. For instance, wben court adjourned on 27 June, if no notice of appeal was then given, tbe appellant could have given it \u201cin ten days thereafter.\u201d In making the computation, 27 June, the day of adjournment, would be excluded, and notice must have been given, at the latest, some time on 7 July. He would not have been allowed to consider 28 June as the first day and exclude that also, so as to make service on 8 July sufficient. The service of process must be made ten days before the return day, which is on Monday of court. Hence service on Friday is sufficient, because, excluding that day and including Monday, there are ten days. Upon the rule contended for by the appellee of excluding the first day of the ten days, service would have to be made on Thursday.\nIn numerous cases where by agreement \u201cthirty days to serve case of appellant and thirty days thereafter to serve counter-case,\u201d the same computation that we hold in this case has always been observed. Mitchell v. Haggard, 105 N. C., 173; Hardee v. Timberlake, 159 N. C., 552. The first day on which the act could have been done, which here was on 27 July, is excluded and thirty full days, counting 28 July as one of them, expired 26 August. There must always be some time specified either by statute or by agreement, and the failure to observe the time is fatal, whether it is by one day or more. If the specified time is to be exceeded, there is no rule to measure such time that can be allowed in excess. There is an exception when there is fraud or misrepresentation, which is not alleged here, or a waiver, which cannot be shown if denied, unless the waiver is in writing.\nThe case must therefore be heard upon the appellant\u2019s case on appeal which is sent up in the record.\nMotion denied.",
        "type": "majority",
        "author": "Clare, C. J."
      }
    ],
    "attorneys": [
      "Morphew & Phillips for plaintiff.",
      "A. D. Raby for defendants."
    ],
    "corrections": "",
    "head_matter": "BOARD OF EDUCATION OF GRAHAM COUNTY v. B. M. ORR et als.\n(Filed 14 December, 1912.)\n1. Appeal and Error \u2014 Parol Agreement.\nA parol agreement made between the parties to an appeal will not be considered by the Supreme Court if denied.\n2. Appeal and Error \u2014 Written Agreement \u2014 Time to Serve Case\u2014 Computation \u2014 Interpretation of Statute.\nWhen there is a' written agreement made between the parties to an action extending the time allowed by the statute as to the service of the case, counter-case, or exceptions, the service by either of the parties after time specified therefor in the agreement is void; and in computing the time, the first day allowed in the time extended is counted as well as the last, allowing the full number of days agreed upon.\nAppeal by plaintiff from Webb, J., at Special Term, 1912, O\u00cd GrRAHAM.\nMorphew & Phillips for plaintiff.\nA. D. Raby for defendants."
  },
  "file_name": "0218-01",
  "first_page_order": 262,
  "last_page_order": 264
}