Boykin v. . Wright Pass v. . Shine

Decided September 5, 1893

Supreme Court of North Carolina · decided 1893-09-05

<p>Time of Docketing Appeal — Motion to Dismiss — Accepting Service of Case no Waiver of Right to Dismiss.</p> <p>Where a judgment was rendered in a Superior Court at February Term, 1892, and appellee agreed that appellant might have “thirty days to perfect appeal,” and upon the “ case” there was an endorsement as follows — “Service accepted December 31,1892 ” — and the appeal was docketed in March, 1893:' Held, that the endorsement of acceptance of service of the case does not, in itself, constitute a waiver of appellee’s right to have the appeal dismissed because not docketed within the prescribed time.</p>

Decided 1893-09-05

Burwell, J.:

¶1 The judgment was rendered at February Term, 1892, of the Superior Court. The appeal was docketed in this Court March 13,1893. It appears in the record that the appellee agreed that the appellant might have “thirty days to perfect appeal.” Upon “the case” is this endorsement — “Service accepted December 31, 1892” — and this is signed by counsel who represented plaintiffs in the Court below.

¶2 We do not think this endorsement, standing alone, constitutes in any degree a waiver of the appellee’s right to insist that the appeal shall be dismissed because not docketed here within the prescribed time. His motion to dismiss must be allowed. Appeal Dismissed.