Bell v. . Nivens

33 S.E.2d 66, 225 N.C. 35, 1945 N.C. LEXIS 241

• Court: Supreme Court of North Carolina
• Decided: February 28, 1945
• Status: Published

Opinion

Stacy, C. J.

We have bere a question of appellate procedure.

A writ of certiorari from this Court is not available to extend the time for preparation and service of statement of case on appeal. Smith v. Smith, 199 N. C., 463, 154 S. E., 737. This is a matter which belongs to the parties and the court below, S. v. Moore, 210 N. C., 686, 188 S. E., 421, subject to the limitation that the extension may not carry the appeal beyond the time it is due here. Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126. It is axiomatic among those engaged in appellate practice that a “statement of case on appeal not served in time” may be disregarded or treated as a nullity. Guano Co. v. Hicks, 120 N. C., 29, 26 S. E., 650. Of course, where a party is disadvantaged by some error or act of the court or its officers, and not by any fault or neglect of his own or his agent, a different situation is presented. Bank v. Miller, 190 N. C., 775, 130 S. E., 616; Winborne v. Byrd, 92 N. C., 7; Johnson v. Andrews, 132 N. C., 376, 43 S. E., 926.

Nor is it permissible to retrieve by certiorari the right to bring up the “case on appeal” which has been lost by laches. S. v. Moore, supra. Its true use is to preserve the right before it is lost in order to prevent its loss. Bank v. Miller, supra; Pruitt v. Wood, supra.

The failure to have the “case on appeal” legally settled, however, does not ipso facto require a dismissal of the appeal. Roberts v. Bus Co., 198 N. C., 779, 153 S. E., 398; Wallace v. Salisbury, 147 N. C., 58, 60 S. E., 713. The appellants are still entitled to present the case on the record proper. Hicks v. Westbrook, 121 N. C., 131, 28 S. E., 188.

The failure to file brief works an abandonment of the exceptions and assignments of error, S. v. Dingle, 209 N. C., 293, 183 S. E., 376, except those appearing on the face of the record which are cognizable sua sponte, e.g., want of jurisdiction or some patent defect. Thornton v. Brady, 100 N. C., 38, 5 S. E., 910; Appomattox v. Buffaloe, 121 N. C., 37, 27 S. E., 999.

Here the right to bring up the “case on appeal” has been lost by failure of appellants to serve their statement within the time allowed, or to obtain a waiver of such requirement. The mailing of the statement was not sufficient service in the absence of an understanding to that effect. Forte v. Boone, 114 N. C., 176, 19 S. E., 632; Hicks v. Westbrook, supra; Edwards v. Perry, 208 N. C., 252, 179 S. E., 892; Roberts v. Bus Co., supra. Hence, the result:

Certiorari, disallowed.

Motion to dismiss, denied.

Motion to affirm, granted.