Hicks v. . Westbrook

28 S.E. 188, 121 N.C. 131

Opinion

Clark, J.:

If there was any dispute of fact as to whether there was service in time, it was proper that it should be submitted to the Court below (Cummings v. Hoffman, 113 N. C., 267; Walker v. Scott, 102 N. C., 487) and his ITonor having found as a fact that there was no service of the appellant’s case in the statutory time, he properly directed the appellant’s “case on appeal” be stricken from the file.

This order being excepted to, the clerk sent up “appellant’s case.” “There being a statement of case on appeal signed only by the appellant’s counsel, but nothing to. show that it was served within the time, or indeed at all, upon the.appellee or his counsel” it is a nullity. Peebles v. Braswell, 107 N. C., 68; M’f’g. Co. v. Simmons, 97 N. C., 89; Howell v. Jones, 109 N. C., 102. The absence of a case on appeal does not entitle the appellee to have the appeal dismissed, but there being no error on the face of the record proper, the judgment below is affirmed. McNeill v. Railroad, 117 N. C., 642; Smith v. Smith, 119 N. C., 314, and cases cited under sub-head “No case on appeal” Clark’s Code p. 582, and Supplement to same p. 89. The reason of this is that, though there is no “case on appeal” which alone could show errors and exceptions on the trial, yet if upon inspection of the record proper (Code, Sec., 957, Thornton v. Brady, 100 N. C., 38, Upper Appomattox Co. v. Buffaloe, at this term,) the Court had no jurisdiction or a cause of action was not stated, the judgment below could not be sustained.

Affirmed.