Brock v. . Ellis

137 S.E. 585, 193 N.C. 540, 1927 N.C. LEXIS 398

• Court: Supreme Court of North Carolina
• Decided: April 13, 1927
• Status: Published

Opinion

Stagy, C. J.

This case was heard at the November Term, 1926, Forsyth Superior Court, and resulted in the affirmance of a judgment in favor of the plaintiffs rendered on a verdict in the Forsyth County Court, from which the defendant had appealed to the Superior Court, as was his right under the law. Barton v. Barton, 192 N. C., 453; Chemical Co. v. Turner, 190 N. C., 471; Smith v. Winston-Salem, 189 N. C., 178.

No notice of appeal to this Court was given by the defendant at the November Term, Forsyth Superior Court, but at the following December Term of said court entries of appeal were permitted to be made by the defendant, and the court, purporting to act in its discretion, “allowed the defendant forty-five days in which to make up and serve case on appeal, and plaintiffs forty-five days thereafter to serve counter-case, or file exceptions.” These entries were made in the absence of counsel for plaintiffs and without their consent.

Without deciding whether the entries of appeal, made at the December Term, 1926, Forsyth Superior Court, were of any force or effect, it is sufficient to say that, up to the present time, no statement of case on appeal to this Court has been prepared or served by the defendant as required by the statute, nor has the record proper, or any part thereof, been filed in this Court, without which a motion for certiorari may not be entertained. Baker v. Hare, 192 N. C., 788; Murphy v. Electric Co., 174 N. C., 782.

Plaintiffs are clearly within their rights, and they are entitled to have the appeal dismissed at the cost of the defendant. Cox v. Lumber Co., 177 N. C., 227. The defendant’s motion for certiorari must be denied. Waller v. Dudley, ante, 354.

Certiorari disallowed. Appeal dismissed.