Schwarberg v. . Howard

147 S.E. 741, 197 N.C. 126, 1929 N.C. LEXIS 167

• Court: Supreme Court of North Carolina
• Decided: April 24, 1929
• Status: Published

Opinion

Stacy, C. J.

It appears from the statement of case on appeal, which constitutes the entire record sent to this Court, that summons in an action entitled as above, was issued out of the Superior Court of Moore County 29 March, 1928, and that thereafter, 25 July, 1928, two of the defendants, E. M. Howard and United States. Land Company, through their counsel, entered a special appearance and move, first, that the action be dismissed for want of proper service as to them; and, second, that the action be moved to Carteret County for trial, if not dismissed. Both motions were overruled and the defendants appeal. The complaint is not sent up as a part of the record as required in all cases, and we are not able to determine the nature and character of the action.

It is provided by Rule 19, sec. 1, of the Rules of Practice in the Supreme Court that “the pleadings on which the case is tried, the issues and the judgment appealed from shall be a part of the transcript in all cases.”. 192 N. C., p. 847. The appeal, therefore, must be dismissed for failure to comply with the rules, or to send up the necessary parts of the record proper. S. v. McDraughon, 168 N. C., 131, 83 S. E., 181; Cressler v. Asheville, 138 N. C., 482, 51 S. E., 53; Sigman v. R. R., 135 N. C., 181, 47 S. E., 420; Jones v. Hoggard, 107 N. C., 349, 12 S. E., 286.

As to whether the defendants did not waive their special appearance and enter a general appearance by moving for change of venue as a matter of right, see Motor Co. v. Reaves, 184 N. C., 260, 114 S. E., 175.

Appeal dismissed.