In re the Estate of Godwin

Court of Appeals of North Carolina

In re the Estate of Godwin

194 S.E.2d 204, 17 N.C. App. 365, 1973 N.C. App. LEXIS 1362

CourtCourt of Appeals of North Carolina

DecidedFebruary 14, 1973

DocketNo. 7319SC174

StatusPublished

This text of 194 S.E.2d 204 (In re the Estate of Godwin) 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.

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In re the Estate of Godwin, 194 S.E.2d 204, 17 N.C. App. 365, 1973 N.C. App. LEXIS 1362 (N.C. Ct. App. 1973).

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Opinion

HEDRICK, Judge.

G.S. 1-282 in pertinent part provides:

“The appellant shall cause to be prepared a concise statement of the case. ... A copy of this statement shall be served on the respondent within fifteen days from the entry of the appeal taken. . . . [T]he trial judge may . . . enter an order or successive orders extending the time for service of the case on appeal. . . . The initial order of extension must be entered prior to expiration of the statutory time for service of the case on appeal. . . .” (Emphasis added.)

In Roberts v. Stewart and Newton v. Stewart, 3 N.C. App. 120, 164 S.E. 2d 58 (1968), cert. denied, 275 N.C. 137, this Court said: “In the absence of a case on appeal served within the time [367]*367fixed by the statute, or by valid enlargement, the appellate court will review only the record proper and determine whether errors of law are disclosed on the face thereof.” There is nothing in the record to indicate that “the case on appeal” has been served as provided by G.S. 1-282. Therefore, our review is limited to determining whether error appears on the face of the record proper.

From the record before us we are unable to determine when or where the application for the widow’s year’s allowance was filed. The judgment of the magistrate and the appeal to the district court noted thereon bear no relation to the application. Assuming, however, that the judgment was a denial of the widow’s application for the allotment of a year’s allowance, her appeal therefrom would have been to the superior court as provided in G.S. 30-23.

No such appeal is shown in the record and the order dismissing the appeal is

Affirmed.

Judges Campbell and Morris concur in the result.

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HEDRICK, Judge.

G.S. 1-282 in pertinent part provides:

“The appellant shall cause to be prepared a concise statement of the case. ... A copy of this statement shall be served on the respondent within fifteen days from the entry of the appeal taken. . . . [T]he trial judge may . . . enter an order or successive orders extending the time for service of the case on appeal. . . . The initial order of extension must be entered prior to expiration of the statutory time for service of the case on appeal. . . .” (Emphasis added.)

In Roberts v. Stewart and Newton v. Stewart, 3 N.C. App. 120, 164 S.E. 2d 58 (1968), cert. denied, 275 N.C. 137, this Court said: “In the absence of a case on appeal served within the time [367]*367fixed by the statute, or by valid enlargement, the appellate court will review only the record proper and determine whether errors of law are disclosed on the face thereof.” There is nothing in the record to indicate that “the case on appeal” has been served as provided by G.S. 1-282. Therefore, our review is limited to determining whether error appears on the face of the record proper.

From the record before us we are unable to determine when or where the application for the widow’s year’s allowance was filed. The judgment of the magistrate and the appeal to the district court noted thereon bear no relation to the application. Assuming, however, that the judgment was a denial of the widow’s application for the allotment of a year’s allowance, her appeal therefrom would have been to the superior court as provided in G.S. 30-23.

No such appeal is shown in the record and the order dismissing the appeal is

Affirmed.

Judges Campbell and Morris concur in the result.

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194 S.E.2d 204, 17 N.C. App. 365, 1973 N.C. App. LEXIS 1362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-godwin-ncctapp-1973.

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