Rosenthal v. . Roberson

Citations

• 19 S.E. 667
• 114 N.C. 594

Syllabus

<p>Case on Appeal — Time for Service — Practice—Dismissed of Appeal — Nonsuit■—•Error in Name of Party — Judgment, ■ how corrected — Motion in the Cause.</p> <p>1. The time -vvitliin which a case and counter-case on appeal must be served being prescribed by statute, the Courts cannot prescribe a different method by extending the time, but this can only be done by consent of the parties if admitted or reduced to writing or entered on the minutes or docket.</p> <p>2. The time for service of a case on appeal must be computed from the day of the actual adjournment of the Court, and not from the last day to which a term of Court could be extended.</p> <p>3. Service of a case on appeal after the expiration of the time allowed for the same is a nullity.</p> <p>4. Although the absence of a case on appeal is not ground for a motion to dismiss, the judgment will be affirmed unless errors appear on the face of record proper.</p> <p>5. Where the appellant is a plaintiff who has submitted to a nonsuit, there can be no error in the record proper which could avail him.</p> <p>(i. Where no judgment was entered below an appeal from a judgment of nonsuit, will be dismisssd.</p> <p>7. Where the summons in an action vyas served upon W. A. F., who was named in the summons, the fact that a judgment was rendered against “W. H. F.” does not necessarily vitiate it or render it void; but it may be corrected by motion in the cause, and is expressly allowed at any time by section 273 of The Code, and need not be made within a year after notice thereof.</p> <p>8. An action brought in one county to correct a judgment rendered in another cannot be treated as a motion in the cause.</p>