{ "id": 8656943, "name": "WAYNESVILLE TRANSPORTATION COMPANY v. WAYNESVILLE LUMBER COMPANY", "name_abbreviation": "Waynesville Transportation Co. v. Waynesville Lumber Co.", "decision_date": "1915-01-13", "docket_number": "", "first_page": "60", "last_page": "61", "citations": [ { "type": "official", "cite": "168 N.C. 60" } ], "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": "120 N. C., 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657183 ], "opinion_index": 0, "case_paths": [ "/nc/120/0277-01" ] }, { "cite": "152 N. C., 759", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272933 ], "opinion_index": 0, "case_paths": [ "/nc/152/0759-01" ] }, { "cite": "133 N. C., 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657105 ], "opinion_index": 0, "case_paths": [ "/nc/133/0253-01" ] }, { "cite": "142 N. C., 523", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "140 N. C., 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652234 ], "opinion_index": 0, "case_paths": [ "/nc/140/0427-01" ] }, { "cite": "138 N. C., 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268538 ], "opinion_index": 0, "case_paths": [ "/nc/138/0020-01" ] }, { "cite": "116 N. C., 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654342 ], "opinion_index": 0, "case_paths": [ "/nc/116/0077-01" ] }, { "cite": "114 N. C., 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651200 ], "opinion_index": 0, "case_paths": [ "/nc/114/0620-01" ] }, { "cite": "102 N. C., 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8648937 ], "opinion_index": 0, "case_paths": [ "/nc/102/0025-01" ] }, { "cite": "144 N. C., 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660759 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/144/0472-01" ] }, { "cite": "166 N. C., 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269027 ], "opinion_index": 0, "case_paths": [ "/nc/166/0213-01" ] } ], "analysis": { "cardinality": 295, "char_count": 4052, "ocr_confidence": 0.483, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3669827854828602 }, "sha256": "2b04e4df072e273c4db038cd100f04999bfe4e803cb0ebead81175d0524c7a15", "simhash": "1:8407c1f65be66ccf", "word_count": 719 }, "last_updated": "2023-07-14T21:05:21.378028+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WAYNESVILLE TRANSPORTATION COMPANY v. WAYNESVILLE LUMBER COMPANY." ], "opinions": [ { "text": "ClaRK, C. J.\nThis case was tried at July Term, 1914, of Haywood. By agreement, the time was extended for serving the case and counter-case on appeal, which is a bad custom, and not to be encouraged. The plaintiff appellant served its case on defendant 9 September, 1914, and the defendant served its counter-case on the appellant 9 November, 1914, both being witbin the time of the extension agreed upon in writing. Neither ease was accepted by the other, and the transcript not being docketed here, the appellant now moves, on 10 December, to docket and dismiss under Eule 17.\nThis he was entitled to do. If the appellant was not in default for the delay in settling the case on appeal, still he was required to docket the record proper at the time required by the rule, and should have asked for certiorari for the case on appeal, provided he showed that on receipt of the counter-case he had \u201cimmediately\u201d requested the judge to settle the case, as required by Eevisal, 591, and that the appellant was in no wise to be blamed for the delay in doing so. This has been repeatedly held by this Court. Hawkins v. Tel. Co., 166 N. C., 213, is one of the most recent eases, and refers to numerous others in which the matter has been discussed and fully settled in every aspect, quoting Vivian v. Mitchell, 144 N. C., 472, in which the Court cited, among other cases, Harrison v. Hoff, 102 N. C., 25; Jones v. Asheville, 114 N. C., 620; Paine v. Cureton, ib., 606; Mortgage Co. v. Long, 116 N. C., 77; Barbee v. Justice, 138 N. C., 20; Craddock v. Barnes, 140 N. C., 427; Cozart v. Assurance Co., 142 N. C., 523. And the Court added in Vivian v. Mitchell, supra: \u201cThe decisions to this effect have been uniform and so oft repeated that of late years the Court has usually contented itself by following the precedents, without opinion, by a per curiam order.\u201d\nEevisal, 591, provides that if the appellant does not accept the appel-lee\u2019s counter-case he \u201cshall immediately request the judge to fix the time and place for settling the case before him.\u201d Stroud v. Tel. Co., 133 N. C., 253. It does not appear that the appellant did this. It is also true that the appellant might contend that in such event his case as amended by the defendant\u2019s counter-case should be taken as the case on appeal. But in either of these cases it is none the less necessary that the appellant should docket .the record proper and apply for a certiorari, and in the latter instance it was his duty to send up his case as amended by the appellee\u2019s case.\nIn Hewitt v. Beck, 152 N. C., 759, the Court said that when the appellant seeks to excuse himself because there has been delay in settling the case, without any fault on his part, the Court has \u201cuniformly held that he must nevertheless docket his transcript of the r\u00e9cord proper, in proper time, to get a foothold in this Court.\u201d In Burrell v. Hughes, 120 N. C., 277, it is said, citing many cases: \u201cThere are some matters which should be deemed settled, and this is one of them.\u201d -That case has been often cited since, see Anno. Ed.\nMotion allowed.", "type": "majority", "author": "ClaRK, C. J." } ], "attorneys": [ "No counsel for plaintiff.", "John M. Queen and Hannah & Leatherwood for defendant." ], "corrections": "", "head_matter": "WAYNESVILLE TRANSPORTATION COMPANY v. WAYNESVILLE LUMBER COMPANY.\n(Filed 13 January, 1915.)\nAppeal and Error \u2014 Unsettled Case \u2014 Docketing Case \u2014 Motions\u2014Certiorari\u2014 Agreements Extending Time for Service of Cases.\nWhere the case and counter-case or exceptions on appeal have been served within the time agreed upon in writing, it is the duty of the appellant to \u201cimmediately\u201d request the judge to settle the case as required by Revisal, sec. 591; and should the judge not settle the case in time for filing in- the Supreme Court, the appellant should docket the record proper and move for a certiorari, or the appellee, upon motion, may have the appeal dismissed under Rule 17. The practice among attorneys of extending by consent the time for service of the\u2019 case on appeal beyond that allowed by the statute is not commended.\nMotioN to docket and dismiss, under Rule 17, the plaintiff\u2019s appeal.\nNo counsel for plaintiff.\nJohn M. Queen and Hannah & Leatherwood for defendant." }, "file_name": "0060-01", "first_page_order": 116, "last_page_order": 117 }