State v. Hawley

208 S.E.2d 383, 23 N.C. App. 223, 1974 N.C. App. LEXIS 2056

Opinion

MARTIN, Judge.

There is nothing in the record to disclose how the superior court obtained jurisdiction of this case. “The Court of Appeals will take notice ex mero motu of the failure of the record to show jurisdiction in the court entering the judgment appealed from.” State v. Byrd, 4 N.C. App. 672, 673, 167 S.E. 2d 522 (1969). It is the duty of the defendant appellant to see that the record on appeal is properly made up and transmitted to the Court of Appeals. State v. Parks, 20 N.C. App. 207, 200 S.E. 2d 837 (1973) ; State v. Marshall, 11 N.C. App. 200, 180 S.E. (1971) ; State v. Byrd, supra. The superior court has no jurisdiction to try an accused for a misdemeanor upon a warrant of the district court unless he is first tried and convicted for such misdemeanor in the district court and appeals to the superior court from the sentence imposed in the district court. State v. Parks, supra; State v. Marshall, supra; State v. Byrd, supra. For failure to show jurisdiction, the appeal must be dismissed. State v. Banks, 241 N.C. 572, 86 S.E. 2d 76 (1955); State v. Marshall, supra.

Appeal dismissed.

Chief Judge Brock and Judge Morris concur.