Lupton v. . Hawkins

188 S.E. 110, 210 N.C. 658, 1936 N.C. LEXIS 190

• Court: Supreme Court of North Carolina
• Decided: November 4, 1936
• Status: Published

Opinion

Stacy, C. J.

The Court is without jurisdiction to entertain the appeal, due to the defective affidavit upon which plaintiff was allowed to appeal in forma pauperis, and the same is dismissed on authority of Riggan v. Harrison, 203 N. C., 191, 165 S. E., 358; Hanna v. Timberlake, 203 N. C., 556, 166 S. E., 733; and Honeycutt v. Watkins, 151 N. C., 652, 65 S. E., 762.

The plaintiff does not aver in her affidavit, -as required by C. S., 649, that she “is advised by counsel learned in the law that there is error in matter of law in the decision of the Superior Court in said action.” The requirements of the statute are mandatory, McIntire v. McIntire, 203 N. C,. 631, 166 S. E., 732, and jurisdictional, Powell v. Moore, 204 N. C., 654, 169 S. E., 281, “and unless the statute is complied with, the appeal is not in this Court, and we can take no cognizance of the case, except to dismiss it from our docket.” Honeycutt v. Watkins, supra.

There is no authority for granting an appeal in forma pauperis without proper, supporting affidavit. Powell v. Moore, supra; S. v. Stafford, 203 N. C., 601, 166 S. E., 734.

Appeal dismissed.