Booth v. Utica Mutual Insurance

301 S.E.2d 98, 308 N.C. 187, 1983 N.C. LEXIS 1122

• Court: Supreme Court of North Carolina
• Decided: April 5, 1983
• Docket: 659PA82
• Status: Published

Opinion

PER CURIAM.

The order of the Court of Appeals dismissing the plaintiffs appeal dealt solely with a procedural issue, ie., whether the plaintiff properly gave notice of appeal. The Court of Appeals has never considered the substantive issue raised in the plaintiffs brief before that court concerning the granting of the motion of defendant-appellee for summary judgment nor do we. The only issue presented before this Court is the propriety of the Court of Appeals’ order dismissing plaintiff-appellant’s appeal. The record on appeal clearly shows that the plaintiff-appellant failed to give timely notice of appeal. Failure to give timely notice of appeal in compliance with G.S. 1-279 and Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely attempt to appeal must be dismissed. Oliver v. Williams, 266 N.C. 601, 146 S.E. 2d 648 (1966); Teague v. Teague, 266 N.C. 320, 146 S.E. 2d 87 (1966); Walter Corporation v. Gilliam, 260 N.C. 211, 132 S.E. 2d 313 (1963); Aycock v. Richardson, 247 N.C. 233, 100 S.E. 2d 379 (1957). The plaintiff here neither gave oral notice of appeal in open court nor filed and served written notice of appeal within ten days of the entry of the Judgment. Thus, the Court of Appeals acted correctly in dismissing the purported appeal.

Affirmed.

Justice MITCHELL took no part in the consideration or decision of this case.