Mooneyham v. Mooneyham

107 S.E.2d 66, 249 N.C. 641, 1959 N.C. LEXIS 378

• Court: Supreme Court of North Carolina
• Decided: February 25, 1959
• Docket: 93
• Status: Published

Opinion

MooRe, J.

The defendant moved in this Court to dismiss the appeal for failure of plaintiff appellant to send up defendant’s verified answer as a part of the transcript of the record proper, in compliance with Rule 19, section (1), of our Rules of Practice. The verified answer which had been attached to defendant’s motion to set aside the clerk’s judgment was not sent as a part of the transcript of the record proper. Indeed, it was admitted by plaintiff’s counsel here that the record with respect to a motion to strike -and alimony pendente lite were not made a part of the -transcript, because counsel deemed that -these were not necessary to an understanding of the exceptions relied on.

The proffered answer was attached to and made a part of the motion heard by Judge Patton and was a part of the record proper. We must assume that the Judge below considered it. Plaintiff excepted to the finding that the defendant had a meritorious defense. Such finding was essential to the validity of Judge Patton’s judgment. Moore v. Deal, 239 N.C. 224, 79 S.E. 2d 507; Stephens v. Childers, 236 N.C. 348, 72 S.E. 849. Whether 'there was error in this finding, this Court cannot determine without the proffered answer before it. Therefore this answer, omitted from the transcript, is an essential part of the record proper in this case. Under Rule 19, section (1), only such records may be omitted as are “not involved and not necessary to an understanding of the exceptions relied on.”

No case on appeal was served on defendant. The appeal came up on the record proper. The responsibility for sending the necessary parts of the record proper is upon the appellant.

“Failure to send up necessary parts of the record proper has uniformly resulted in dismissal of the appeal.” Allen v. Allen, 235 N.C. 554, 70 S.E. 2d 505. See also Thrush v. Thrush, 245 N.C. 63, 94 S.E. 2d 897; Pace v. Pace, 244 N.C. 698, 94 S.E. 2d 819; Griffin v. Barnes, 242 N.C. 306, 87 S.E. 2d 560; Goodman v. Goodman, 208 N.C. 416, 181 S.E. 328.

This case stands as if no appeal had 'been taken from Judge Patton’s judgment. The defendant may file his answer within thirty days from the date this opinion is certified to the Superior Court.

Appeal dismissed.