Ericson v. . Ericson

38 S.E.2d 517, 226 N.C. 474, 1946 N.C. LEXIS 244

Opinion

Winborne, J.

The questions presented on this appeal constitute fundamentally a challenge to the jurisdiction of the court to enter in this action the consent judgment upon which the contempt proceeding against plaintiff is predicated. This makes it necessary to consider the nature of the pleading on defendant’s cross action upon which the consent judgment appears to rest.

If alimony without divorce, under G. S., 50-16, formerly C. S., 1667, were the nature and purpose of the pleading, it could not be maintained by cross action in a suit for divorce instituted by the husband. See Silver v. Silver, 220 N. C., 191, 16 S. E. (2d), 834; Shore v. Shore, 220 N. C., 802, 18 S. E. (2d), 353, and cases cited.

However, it is noted at the threshold of this appeal that the pleadings are not contained in the record filed in this Court. Only memoranda of the purport of the pleadings are shown. Hence, while it may be doubted that any of plaintiff’s assignments of error is tenable, we are precluded from considering or determining them. Goodman v. Goodman, 208 N. C., 416, 181 S. E., 328. The pleadings are essential in order that we may be advised as to the nature of the action or proceeding. Waters v. Waters, 199 N. C., 667, 155 S. E., 564; S. v. Lumber Co., 207 N. C., 47, 175 S. E., 713; Ins. Co. v. Bullard, 207 N. C., 652, 178 S. E., 113; Goodman v. Goodman, supra; Bank v. McCullers, 211 N. C., 327, 190 S. E., 217; Washington County v. Land Co., 222 N. C., 637, 24 S. E. (2d), 338. “The pleadings are a necessary part of the record proper upon appeal, and where the pleadings are omitted from the record, the appeal must be dismissed,” headnote epitomizing the holding in S. v. Lumber Co., supra. See also Plott v. Construction Co., 198 N. C., 782, 153 S. E., 396; Waters v. Waters, supra; Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126; Everett v. Fair Association, 202 N. C., 838, 162 S. E., 896; Riggan v. Harrison, 203 N. C., 191, 165 S. E., 358; Armstrong v. Service Stores, 203 N. C., 231, 165 S. E., 680; Parks v. Seagraves, 203 N. C., 647, 166 S. E., 747; Payne v. Brown, 205 N. C., 785, 172 S. E., 348; Ins. Co. v. Bullard, supra; Goodman v. Goodman, supra; Bank v. McCullers, supra; Washington County v. Land Co., supra. Such is the uniform practice.

Rule 19, section 1, of the Rules of Practice in the Supreme Court, 221 N. C., 544, at page 533, requires “that the pleadings on which the case is tried, the issues, and judgment appealed from shall be a part of the transcript in all cases.”

And Rule. 20 of Rules of Practice provides that “memoranda of pleadings will not be received or recognized in the Supreme Court as pleadings, even by consent.” See Plott v. Construction Co., supra; Bank v. McCullers, supra.

Judicial knowledge arises only from what properly appears on the record. Walton v. McKesson, 101 N. C., 428, 7 S. E., 566; Goodman v. Goodman, supra; S. v. Lumber Co., supra.

Appeal dismissed.