Berwer v. Union Central Life Insurance

188 S.E. 618, 210 N.C. 814, 1936 N.C. LEXIS 233

• Court: Supreme Court of North Carolina
• Decided: December 16, 1936
• Status: Published

Opinion

Per Curiam.

The affidavit filed in the appeal in forma pauperis is defective, in that it does not contain the averment required by O. S., 649, that appellants are “advised by counsel learned in the law that there is error in matter of law in the decision of the Superior Court in said action.” This is a jurisdictional requirement and for that reason the appeal must be dismissed. Hanna v. Timberlake, 203 N. C., 556. See, also, an applicable discussion of this subject in Powell v. Moore, 204 N. C., 654.

On 16 November, 1936, the appellants made an additional affidavit containing the averment omitted from the original affidavit and on the day following obtained an additional order from the trial judge allowing them to appeal in forma pauperis. This did not cure the omission, however, for the reason that the additional affidavit was not made within the five days prescribed by C. S., 649, and for the further reason that said affidavit and order based thereon were not filed in this Court until after the date for docketing the appeal here, 10 November, 1936.

Appeal dismissed.