#### G. W. FISHER, v. J. C. FISHER and TOXAWAY COMPANY et al.

(Filed 13 December, 1913.)

Appeal and Error — Notice “of Appeal — Judgment Rendered Out of Term — Receipt by Clerk — Computation of Time — Certiorari.

Where by consent of the parties a judgment in the Superior Court is rendered after the expiration of the term in which the action has been tried, and sent by mail to the clerk of the court, with mailed notice to the appellant from the judge that this has been done, the time within which notice of appeal to the Supreme Court may be given is computed from the time the judgment has been received by the clerk, and not from the time the appellant has received the judge’s notification that he had signed the judgment; and where the judge improperly refuses to settle the ease on appeal for want of statutory notice given to the appellee, a certiorari from the Supreme Court will lie.

Clark, C. J., dissenting.

Appeal by defendants from, Adams, J., at Spring Term, 1913, of TRANSYLVANIA.

*106Tbis is a petition for a certiorari to require tbe judge of tbe Superior Court to settle tbe case on appeal, be baying declined to do so upon tbe ground that tbe defendant bad lost bis appeal by failing to serve bis notice of appeal witbin tbe statutory time.

Upon tbe application to settle tbe case, bis Honor found tbe facts and ruled tbereon as follows:

1. On tbe last day of tbe term tbe exceptions to tbe report of tbe referee were fully argued1 by counsel, and at tbe conclusion of tbe argument -counsel consented that tbe court might take tbe papers to Asheville and consider tbe. arguments and tbe exceptions.

2. After considering tbe evidence, arguments, and exceptions, tbe court prepared a draft of tbe judgment and forwarded it to tbe plaintiff’s attorney in June, requesting him to confer with an attorney for tbe defendant and ascertain whether they could agree on tbe commissioners to be appointed. Nothing was beard from tbe attorneys until after tbe close of tbe courts in tbe Fifteenth Judicial District, and tbe undersigned bad returned to bis borne in Carthage.

3. After considerable correspondence, it was finally agreed that tbe judgment might be signed anywhere in tbe. State and 'in vacation.

4. Tbe judgment was then immediately signed, and at tbe request of plaintiff’s counsel was sent to him at Hendersonville, together with other papers in tbe cause, on 28 June, 1913. At tbe same time a letter was mailed to W. W. Zachary, one of tbe attorneys for tbe defendant,, at Brevard,'notifying him that tbe draft of tbe judgment originally submitted bad been signed and sent to Judge Ewart, plaintiff’s attorney. W. W. Zachary, attorney,for tbe defendant, bad previously written tbe undersigned that be bad examined tbe judgment, and bad consented that it should be signed, as heretofore stated.

5. The judgment and other papers in tbe cause were sent by Judge Ewart to tbe clerk of tbe Superior Court at Brevard, 30 June, 1913, by express, and were received tbe same day by *107tbe express agent at Brevard, wbo notified tbe clerk of tbeir receipt tbrougb tbe postoífiee, 1 July, 1913.

6. On 30tb June Judge Ewart wrote tbe clerk at Brevard to mark tbe judgment filed as of that date.

7. Qn 1st July Judge Ewart wrote Mr. Zacbary that be bad sent by express to tbe clerk at Brevard tbe judgment and other papers in tbe cause, and tbat be could, if be desired, serve notice of appeal on Judge Ewart of on tbe plaintiff.

8. Tbat tbe papers sent by Judge Ewart to tbe clerk by express were not prepaid, and tbe clerk, for tbis reason, refused to take tbe papers out of tbe express office, and so notified tbe defendant’s counsel. Tbe clerk'afterwards changed bis mind and took tbe papers to bis office on 8th July, but did not notify defendant’s counsel until 12th July tbat be bad done 'so.

9. On 17 July tbe defendant caused to be served on Judge Ewart a notice of appeal from tbe judgment, and on 31st July caused its statement of case on appeal to be served upon him.

10. On 8 August, 1913, tbe plaintiff’s attorney prepared a “counter-case and exceptions” and placed this paper * in tbe hands of an officer, wbo made tbe following return: “Executed tbe within by reading tbe contents to O. W. Clayton, of Zacb-ary & Clayton, attorneys, for defendant, Tbe Toxaway Company. Tbis 8 August, 1913. J. H. Pickelsimer, Sheriff; by W. H. Harris, D. S.”

11. On 13th August tbe plaintiff caused to be served on tbe defendant’s attorney notice tbat be would make a motion before tbe undersigned, a.t Monroe on 25tb August, to “strike from tbe files of tbe clerk and to disallow tbe appeal on tbe ground tbat notice was not given within tbe statutory period.”

12. At tbe same time and place, after notice, tbe defendant moved to adopt its statement and to disallow tbe exceptions or counter-case of plaintiff.

The court further finds:

13. Tbat Judge Ewart reserved and did not waiye bis right to move to disallow defendant’s statement of ease on appeal, by causing tbe counter-case to be served; tbe counter-case containing tbe statement tbat it was “not intended to waive any rights *108of plaintiff to move to strike appeal from the files of tbe clerk.”

14. A letter mailed at Carthage, 28th June, would reach Bre-vard, the residence of Mr. Zachary, in due course before 1st July.

15. A letter mailed at Hendersonville, the residence of Judge Ewart, would reach Brevard in due course within a few hours, there being daily trains between these places.

16. The court finds no evidence in the record that the defendant, appellant, caused its appeal to be entered by the clerk on the judgment docket.

11. The plaintiff did not return the defendant’s statement of case on appeal with his exceptions or counter-case attached or indorsed, and that the same was served as hereinbefore stated within ten days after the appellant’s statement of case was served on appellee.

The court further finds:

18. Conceding .that the failure of the clerk to take the papers from the express office (although the defendant’s attorney was notified on 1st July that the papers had theretofore been sent to the clerk by express) cannot be _ imputed to defendant as laches, still Mr. Zachary, attorney for- defendant, knew the. contents of the judgment, which had previously and before signing been submitted to him, and had actual notice of the rendition of the judgment by letter from the undersigned, written 28th June, and from plaintiff’s counsel, written 1st July.

Conclusion of law:

The judgment having been rendered by consent out of term, and in vacation, it was the duty of the defendant, appellant, to take its appeal within ten days after notice of the judgment, and as notice of appeal was served on plaintiff on lYth July, more than ten days after notice of the judgment, and the statement of the case was served on 31st July, the court is of the opinion that neither the notice of appeal nor the statement on appeal was served within the time required by law, and for that reason disallows defendant’s appeal, and orders it stricken from the files.

II. •G. Ewart for 'plaintiff.

J. II. Merrimon for defondant.

*109AlleN, J.

If the defendant has lost the right to appeal by its own laches, in failing to give the notice of appeal within the statutory time, the certiorari ought not to issue; and, on the other hand, if the notice was served in time, it is entitled to the writ in order that the case may be settled and the appeal heard.

The defendant knew on 1 July, 1913, that a judgment had been signed denying its claim; the judgment reached the office of the clerk of the Superior Court on 8 July, 1913, and the notice of appeal was served on 17 July, 1913.

If, therefore, time is to be counted against the defendant from 1st July, when it knew that judgment had been signed, it has lost the right of appeal, because notice thereof was not served within ten days; but if from 8th July, when the judgment was filed with the clerk, the defendant has complied with the statute.

When a judgment is rendered out of term, the party desiring to review it must take his appeal “within ten days after notice thereof” (Revisal, sec. 590), and within this time must cause notice of appeal to be served on the adverse party. Revisal, sec. 591.

Within ten days after notice thereof, means ten days after notice of the rendition thereof, and the determination of the question before us depends on whether a judgment out of term is rendered when it is signed or when it is filed with the clerk.

If the latter is the correct construction, the defendant had notice that a judgment had been signed on 1st July, but did not have notice of the rendition of a judgment until 8th July.

The authorities furnish us very little aid, and as either construction is permissible, we are properly influenced by our conception of the safest and most convenient rule.

Many difficulties may arise, which will create confusion and uncertainty, if we hold that a letter from the judge that he has signed a judgment is notice of its rendition. Did he write the letter? When? Did he mail it? When? Did he change the judgment after writing? Did the attorney receive the letter, and when? and other questions .which, in the event' of controversy, the judge, .whose acts are being investigated, must pass upon.

*110Again, the careful and experienced lawyer cannot decide wbat to do until be has seen and read the judgment. • He takes no man’s word as to what is in a contract, deed,'will, or judgment, but'must examine the paper before determining upon a line of action.

Judgments signed out of term áre entered as of the term, and in McDowell v. McDowell, 92 N. C., 228, it is said: “The judgment must be entered as of the term of the court at which the question to be decided or the matter to be acted upon was presented to the court, and the day of entry should be noted on the record.” And again in the same case: “"When the judgment shall be entered, the appellants, if they shall then be dissatisfied with it, may thereafter, by some appropriate proceeding, have it reviewed in this Court.”

It was also held in Harrell v. Peebles, 79 N. C., 32, that it should appear by the record when a judgment signed out of term was rendered and when recorded, and in Shackelford v. Miller, 91 N. C., 185, that the date of entering should always be noted on the record.

These cases are not authoritative upon the question before us, because .it is necessary to make the entry upon the docket for other purposes than an appeal, but they serve to show that as the clerk is required to note the date of entry on the docket, this .furnishes a definite and fixed period from which to compute the time.

That the entry on the docket is important in its relation to the appeal seems to be the opinion of the Chief Justice, who prepared the article on “Appeal and Error” in Cyc., vol. 2. He says on p. 626 : “In order that a judgment may be reviewed by an appellate court, it must be entered in permanent form as a record of the court. The entry must be intended as an entry of judgment.” And he makes the following annotation upon the text: “On the consideration of the question as to when the time allowed within which to perfect an appeal begins to run, the following rulings have been made as to when a judgment is to be considered entered:

> *111 "California, — When it is ‘entered at length in the minute-book of the court.’ Matter of Pearson, 119 Cal., 27, construing Cal. Code Civ. Proc., secs. 1704, 1715.

> “New York — When it is left with the clerk to be copied into the records. Gay v. Gay, 10 Paige (N. Y.), 369.

> “Ohio1 — At the date of filing in accordance with a direction to counsel to prepare and file a decree on lines stated, and not at the time of such announcement and direction. S. v. Seward, 16 Ohio Cir. Ct., 443; 9 Ohio Cir. Dec., 168.

> “Texas — When it is entered on the minutes of the court. New Birmingham Iron, etc., Co. v. Blevens, 12 Tex. Civ. App., 410.

> “Wisconsin — When it is entered in brief on the minute-book of the clerk, though not recorded at length upon the order book. Uren v. Walsh, 57 Wis., 98, construing Wis. Kev. Stat., sec. 3042.”

We aré, therefore, of opinion that it is the wiser rale, and so hold, that the time for service of notice of appeal begins to run when the judgment reaches the office of the clerk, and that the petitioner is entitled to the writ of certiorari, as prayed for.

Petition allowed.

Claris, C. J.,

dissenting: This case was argued upon exceptions to the referee’s report, and, by consent, Judge Adams was to render his decision in vacation and out of the district. The sole question is within what time the appeal must be taken- from such judgment.

Eevisal, 590, provides: “The appeal must be taken from a judgment rendered out of term, within ten days after notice thereof.” The judge finds as a fact, “Mr. Zachary, attorney for defendant, knew the contents of the judgment, which had previously and before signing been submitted to him, and had actual notice of the rendition of the. judgment by letter from the undersigned, written 28 June and from plaintiff’s counsel, written 1 July.”

The judge having found as a fact that the defendant had received “actual notice” of the rendition of the judgment 28 June, *112and again on 1 July, and knew tbe contents of tbe judgment, wbicb bad been previously submitted to him, it would seem tbat under tbe provision of tbe statute, Revisal, 590, tbe appeal should bave been taken “within ten days” after sucb notice.

His Honor's conclusion of law is as follows,, wbicb it seems to me ought to be sustained: “Tbe judgment having been rendered by consent out of term, and in vacation, it was tbe duty 'of tbe defendant, appellant, to take its appeal witbin ten days after notice of tbe.judgment; and as notice of appeal was served on plaintiff on 17 July, more than ten days after notice of tbe judgment, and tbe statement of tbe ease was served on 31 July, tbe court is of tbe opinion tbat neither tbe notice of appeal nor tbe statement on appeal was served witbin tbe time required by law, and for tbat reason disallows defendant’s appeal and orders it to be stricken from tbe files.”

It is true tbat entering tbe judgment on the' docket would give constructive notice to all parties; but here tbe judge finds more than tbat. He finds tbat tbe appellant’s counsel knew tbe contents of tbe judgment, having read it, and tbat afterwards be bad actual notice of- its rendition on 28 June from himself, and also on 1 July by letter from tbe opposing counsel. This fact is not denied. If it bad been, tbe judge would bave passed upon tbe facts, wbicb be did anyway. It is not a question, therefore, whether tbe appellant’s counsel received tbe notice. He does not deny it, and the judge finds tbat be did receive it. "What more could be required? It would be very inconvenient if in sucb cases nothing can be done until tbe clerk sees fit to record tbe judgment, wbicb indeed would not be actual notice, but only constructive. When there is no- notice except tbe constructive notice from filing the judgment in tbe clerk’s office, tbe appeal must be taken witbin ten days thereafter. But when there is actual notice prior to tbat time, why should tbe appeal be delayed until there is a constructive notice ?

It will be noted tbat when judgment is rendered at term-time notice is given in open court or witbin ten days after its rendition, without any requirement tbat tbe clerk shall bave recorded tbe judgment. By what analogy or provision of law, *113when there is actual notice, must the appellant be given ten days after recording a judgment rendered by consent out of term ?

By the plain terms of tbe statute, Kevisal, 590, tbe appeal should be taken “within ten days after notice of the judgment, when rendered out of term,” and “within ten days after its rendition, when rendered in term.” Why should the court change the plain letter of the statute? There is no ambiguity in the statute whatever.