Smoak v. Newton

Supreme Court of North Carolina

Smoak v. Newton

67 S.E.2d 462, 234 N.C. 451, 1951 N.C. LEXIS 492

CourtSupreme Court of North Carolina

DecidedNovember 7, 1951

StatusPublished

Cited by1 cases

This text of 67 S.E.2d 462 (Smoak v. Newton) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smoak v. Newton, 67 S.E.2d 462, 234 N.C. 451, 1951 N.C. LEXIS 492 (N.C. 1951).

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Opinion

WiNboene, J.

Clearly the transcript of record on this appeal fails to meet the requirements of Eules 19 (1) and 20 of the Eules of Practice in the Supreme Court of North Carolina, 221 N.C. 543, at pages 553 and 557. The summons, the pleadings, and the organization of the court, and the judgment at the January Term, 1951, and the appeal entries from judgment then so entered, are all absent. And there is no record showing date of termination of the said January Term, 1951, or other record from which time for serving case on appeal from the judgment of January Term, 1951, may be calculated in considering the validity of the judgment at March Term, 1951, from which this appeal is taken.

Eule 19 (1) expressly requires “that the pleadings on which the case is tried, the issues and the judgment appealed from shall be a part of [452]*452the transcript in all eases.” And in Rule 20, it is provided that even “memoranda of pleadings will not be received or recognized in tbe Supreme Court as pleadings, even by consent.” And “where the pleadings are omitted from the record, the appeal must be dismissed.” See S. v. Lbr. Co., 207 N.C. 47, 175 S.E. 713; see also Washington County v. Land Co., 222 N.C. 637, 24 S.E. 2d 338; Ericson v. Ericson, 226 N.C. 474, 38 S.E. 2d 517, where the authorities are assembled.

Whether plaintiff may now be entitled to a writ of certiorari as in Chozen Confections, Inc. v. Johnson, 220 N.C. 432, 17 S.E. 2d 505, is not here presented.

Appeal dismissed.

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WiNboene, J.

Clearly the transcript of record on this appeal fails to meet the requirements of Eules 19 (1) and 20 of the Eules of Practice in the Supreme Court of North Carolina, 221 N.C. 543, at pages 553 and 557. The summons, the pleadings, and the organization of the court, and the judgment at the January Term, 1951, and the appeal entries from judgment then so entered, are all absent. And there is no record showing date of termination of the said January Term, 1951, or other record from which time for serving case on appeal from the judgment of January Term, 1951, may be calculated in considering the validity of the judgment at March Term, 1951, from which this appeal is taken.

Eule 19 (1) expressly requires “that the pleadings on which the case is tried, the issues and the judgment appealed from shall be a part of [452]*452the transcript in all eases.” And in Rule 20, it is provided that even “memoranda of pleadings will not be received or recognized in tbe Supreme Court as pleadings, even by consent.” And “where the pleadings are omitted from the record, the appeal must be dismissed.” See S. v. Lbr. Co., 207 N.C. 47, 175 S.E. 713; see also Washington County v. Land Co., 222 N.C. 637, 24 S.E. 2d 338; Ericson v. Ericson, 226 N.C. 474, 38 S.E. 2d 517, where the authorities are assembled.

Whether plaintiff may now be entitled to a writ of certiorari as in Chozen Confections, Inc. v. Johnson, 220 N.C. 432, 17 S.E. 2d 505, is not here presented.

Appeal dismissed.

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Bluebook (online)

67 S.E.2d 462, 234 N.C. 451, 1951 N.C. LEXIS 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smoak-v-newton-nc-1951.

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