JIM WALTER CORPORATION v. Gilliam

132 S.E.2d 313, 260 N.C. 211, 1963 N.C. LEXIS 651

• Court: Supreme Court of North Carolina
• Decided: September 18, 1963
• Docket: 109
• Status: Published

Opinion

PeR Cubiam.

The purported record filed in this Court shows an utter disregard for the statutes, rules and procedures governing appeals.

The motion to dismiss defendant’s appeal from the judgment of Bundy, J., dated 18 January 1963, was heard in superior court after notice served on defendant’s counsel. The motion was heard 13 July 1963 and it must be assumed that defendant and her counsel were present and had notice of the adverse nature of the order entered by the judge on that date. If defendant desired to appeal therefrom, it was required that notice of appeal be given within 10 days from the entry of the judgment. G.S. 1-279. Within the 10 days defendant was required to have the appeal entered by the clerk on the judgment docket, and to give the adverse party notice thereof. G.S. 1-280. Defendant did not comply with these statutory requirements. The only attempt to give notice was to have the judge, 14 days after entry of the order, sign appeal entries on a paper separate from the order. So far as the purported record discloses, no notice as contemplated by the statute was ever given to the adverse party, and no appeal was ever entered on the judgment docket.

When G.S. 1-279 and G.S. 1-280 are not complied with, the Supreme Court obtains no jurisdiction of a purported appeal and must dismiss it. Aycock v. Richardson, 247 N.C. 233, 100 S.E. 2d 379.

No case on appeal was ever settled by the judge or agreement of counsel, as ordinarily required. G.S. 1-283. Indeed, it does not appear that any case on appeal was ever served on plaintiff or its attorney. G.S. 1-282. If defendant is appealing on the record proper, making the service and settlement of case on appeal unnecessary, the record proper is not certified to this Court by the clerk of superior court in accordance with G.S. 1-284.

The purported record contains no grouping of exceptions and assignments of error as required by our rules. Rules 19(3) and 21 of the Rules of Practice in the Supreme Court, 254 N.C. 785-824. In her brief defendant failed to set out in clear, concise language the question or questions involved on appeal, ibid., Rule 27%. The brief does not set forth a succinct statement of facts, ibid., Rule 28. The record and brief are faulty in other respects.

We have time and time again called attention to the rules of practice in this Court. They are mandatory. Balint v. Grayson, 256 N.C. 490, 124 S.E. 2d 364; 1 Strong: N.C. Index, Appeal and Error, s. 19, p. 89 (Supplement, p. 30), and the many cases cited. The appeal must be dismissed.

Moreover, the purported record shows clearly that the court below did not err in dismissing defendant’s appeal from the judgment of 18 January 1963.

Affirmed.