Bunting v. Bunting

Court of Appeals of North Carolina

Bunting v. Bunting

395 S.E.2d 713, 100 N.C. App. 294, 1990 N.C. App. LEXIS 975

CourtCourt of Appeals of North Carolina

DecidedSeptember 18, 1990

DocketNo. 9022DC20

StatusPublished

Cited by1 cases

This text of 395 S.E.2d 713 (Bunting v. Bunting) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bunting v. Bunting, 395 S.E.2d 713, 100 N.C. App. 294, 1990 N.C. App. LEXIS 975 (N.C. Ct. App. 1990).

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Opinions

HEDRICK, Chief Judge.

On 18 September 1989, Judge Fuller conducted a hearing, announced in open court what his order would be, and directed counsel to prepare the formal order. At the same session of court, on the same day, he signed and entered the formal order from which defendant purports to appeal. The record also discloses that on the same date, defendant requested the court reporter to prepare and deliver to defendant’s counsel a copy of the transcript of the proceedings. The order entered and signed by Judge Fuller on 18 September 1989 was “filed” in the Office of the Clerk on 2 November 1989. Defendant, on 9 November 1989, gave notice of appeal “to the North Carolina Court of Appeals from the findings, conclusions, order and entry of order by the Honorable George T. Fuller, District Court Judge, filed in the Office of the Clerk of Superior Court of Iredell County on November 2,1989” (emphasis added).

G.S. 1-279.1 and Rule 3(c) of the North Carolina Rules of Appellate Procedure provide that a party must give notice of appeal from a judgment or order “within 30 days after its entry.” The appellate court obtains no jurisdiction if the appealing party fails to give notice of appeal within the time prescribed by the statute or rule. See Gualtieri v. Burleson, 84 N.C. App. 650, 353 S.E.2d 652, disc. review denied, 320 N.C. 168, 358 S.E.2d 50 (1987). In the present case, the record affirmatively demonstrates defendant did not give notice of appeal “within 30 days” after the entry of the order on 18 September 1989, and thus, we have no jurisdiction to hear the appeal. Inasmuch as Judge Fuller announced his order in open court and directed counsel to prepare the formal order which the judge signed and entered on the same day, at the same session of court, G.S. 1A-1, Rule 58, paragraph three has no application in this case.

Appeal dismissed.

Judge ARNOLD concurs. Judge Greene dissents.

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HEDRICK, Chief Judge.

On 18 September 1989, Judge Fuller conducted a hearing, announced in open court what his order would be, and directed counsel to prepare the formal order. At the same session of court, on the same day, he signed and entered the formal order from which defendant purports to appeal. The record also discloses that on the same date, defendant requested the court reporter to prepare and deliver to defendant’s counsel a copy of the transcript of the proceedings. The order entered and signed by Judge Fuller on 18 September 1989 was “filed” in the Office of the Clerk on 2 November 1989. Defendant, on 9 November 1989, gave notice of appeal “to the North Carolina Court of Appeals from the findings, conclusions, order and entry of order by the Honorable George T. Fuller, District Court Judge, filed in the Office of the Clerk of Superior Court of Iredell County on November 2,1989” (emphasis added).

G.S. 1-279.1 and Rule 3(c) of the North Carolina Rules of Appellate Procedure provide that a party must give notice of appeal from a judgment or order “within 30 days after its entry.” The appellate court obtains no jurisdiction if the appealing party fails to give notice of appeal within the time prescribed by the statute or rule. See Gualtieri v. Burleson, 84 N.C. App. 650, 353 S.E.2d 652, disc. review denied, 320 N.C. 168, 358 S.E.2d 50 (1987). In the present case, the record affirmatively demonstrates defendant did not give notice of appeal “within 30 days” after the entry of the order on 18 September 1989, and thus, we have no jurisdiction to hear the appeal. Inasmuch as Judge Fuller announced his order in open court and directed counsel to prepare the formal order which the judge signed and entered on the same day, at the same session of court, G.S. 1A-1, Rule 58, paragraph three has no application in this case.

Appeal dismissed.

Judge ARNOLD concurs. Judge Greene dissents.

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Bluebook (online)

395 S.E.2d 713, 100 N.C. App. 294, 1990 N.C. App. LEXIS 975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bunting-v-bunting-ncctapp-1990.

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