L. Harvey and Son Co. v. Shivar

Court of Appeals of North Carolina

L. Harvey and Son Co. v. Shivar

351 S.E.2d 335, 83 N.C. App. 673, 1987 N.C. App. LEXIS 2383

CourtCourt of Appeals of North Carolina

DecidedJanuary 6, 1987

Docket868SC450

StatusPublished

Cited by3 cases

This text of 351 S.E.2d 335 (L. Harvey and Son Co. v. Shivar) 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

L. Harvey and Son Co. v. Shivar, 351 S.E.2d 335, 83 N.C. App. 673, 1987 N.C. App. LEXIS 2383 (N.C. Ct. App. 1987).

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Opinion

MARTIN, Judge.

One of defendant’s contentions on appeal is that the order appealed from is invalid because it was entered after the expiration of the session of court at which the motion was heard. However, the record on appeal, as originally filed in this Court, was insufficient to enable us to resolve the issue. Therefore, pursuant to App. R. 9(b)(5), we ordered that the minutes of the 18 November 1985 civil session of the Superior Court of Wayne County be sent up and made a part of the record on appeal in this case. The minutes reflect that the trial judge rendered his decision in open court on 20 November 1985 and directed that plaintiffs counsel prepare the written order. The clerk made a notation of such action in the minutes of the court. Such a notation constitutes entry of judgment for the purposes of determining when notice of appeal must be given. G.S. 1A-1, Rule 58; In re Moore, 306 N.C. 394, *675 293 S.E. 2d 127 (1982), appeal dismissed, 459 U.S. 1139, 74 L.Ed. 2d 987, 103 S.Ct. 776 (1983).

There is no indication in the record that defendant gave oral notice of appeal at the time the order was entered. She filed and served her written notice of appeal on 9 December 1985, 19 days after “entry” of the order. G.S. 1-279(c) and App. R. 3(c) require that appeal from a judgment or order must be taken within ten days after its entry. “Failure to give timely notice of appeal in compliance with G.S. 1-279 and Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely attempt to appeal must be dismissed.” Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 189, 301 S.E. 2d 98, 99-100 (1983). Therefore, we are without jurisdiction to consider the merits of defendant’s appeal and must order that the appeal be dismissed.

Appeal dismissed.

Chief Judge Hedrick and Judge Cozort concur.

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MARTIN, Judge.

One of defendant’s contentions on appeal is that the order appealed from is invalid because it was entered after the expiration of the session of court at which the motion was heard. However, the record on appeal, as originally filed in this Court, was insufficient to enable us to resolve the issue. Therefore, pursuant to App. R. 9(b)(5), we ordered that the minutes of the 18 November 1985 civil session of the Superior Court of Wayne County be sent up and made a part of the record on appeal in this case. The minutes reflect that the trial judge rendered his decision in open court on 20 November 1985 and directed that plaintiffs counsel prepare the written order. The clerk made a notation of such action in the minutes of the court. Such a notation constitutes entry of judgment for the purposes of determining when notice of appeal must be given. G.S. 1A-1, Rule 58; In re Moore, 306 N.C. 394, *675 293 S.E. 2d 127 (1982), appeal dismissed, 459 U.S. 1139, 74 L.Ed. 2d 987, 103 S.Ct. 776 (1983).

There is no indication in the record that defendant gave oral notice of appeal at the time the order was entered. She filed and served her written notice of appeal on 9 December 1985, 19 days after “entry” of the order. G.S. 1-279(c) and App. R. 3(c) require that appeal from a judgment or order must be taken within ten days after its entry. “Failure to give timely notice of appeal in compliance with G.S. 1-279 and Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely attempt to appeal must be dismissed.” Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 189, 301 S.E. 2d 98, 99-100 (1983). Therefore, we are without jurisdiction to consider the merits of defendant’s appeal and must order that the appeal be dismissed.

Appeal dismissed.

Chief Judge Hedrick and Judge Cozort concur.

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351 S.E.2d 335, 83 N.C. App. 673, 1987 N.C. App. LEXIS 2383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/l-harvey-and-son-co-v-shivar-ncctapp-1987.

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