Poston v. Ragan

187 S.E.2d 503, 14 N.C. App. 134, 1972 N.C. App. LEXIS 2058

• Court: Court of Appeals of North Carolina
• Decided: March 29, 1972
• Docket: No. 7218SC6
• Status: Published

Opinion

CAMPBELL, Judge.

The question for decision is whether appellants may appeal from the order of Judge Kivett dismissing the appeal to superior court perfected by appellants’ co-respondents. We hold that they cannot.

We find no cases directly on point in North Carolina, but the general rule is set forth in 4 C.J.S., Appeal and Error, § 348, p. 1168: . A party is not entitled to the benefit of an exception not taken by himself, and therefore an exception taken by one party is not available to his adversary, or to a co-party.”

We find a clear statement of the general prevailing rule in Weed, et al v. Gainesville, J. & S. R. Co., et al, 119 Ga. 576, 46 S.E. 885 (1904) :

“. . . where there are various and independent parties to the litigation, and one files exceptions, the others have no vested interest therein; that the exception may be withdrawn, and other parties to the record cannot complain of the dismissal or use the original exceptions as a basis for the assignment of error here.”

The authorities cited above are sound. Appellants did not comply with G.S. 1-272, which specifies the manner of effecting an appeal from the clerk of superior court. Therefore, they had no exceptions pending before Judge Kivett. When their corespondents abandoned the only exceptions that were before Judge Kivett, nothing remained to be heard.

Appellants cannot be aggrieved by an order dismissing someone else’s appeal. An appeal to this Court can be taken only by a party aggrieved. G.S. 1-272.

Appealed dismissed.

Judges Britt and Graham concur.