State v. . Parish

Supreme Court of North Carolina

State v. . Parish

65 S.E. 762, 151 N.C. 659, 1909 N.C. LEXIS 338

CourtSupreme Court of North Carolina

DecidedOctober 13, 1909

StatusPublished

Cited by5 cases

This text of 65 S.E. 762 (State v. . Parish) 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

State v. . Parish, 65 S.E. 762, 151 N.C. 659, 1909 N.C. LEXIS 338 (N.C. 1909).

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Opinion

Pee Curiam :

The defendant attempted to appeal in forma pauperis. The affidavits were such as required by the statute (Revisal, sec. 3278), but the order allowing the appeal without giving bond was not signed by the judge, as required by Revisal, sec. 3279, but by the clerk. This latter is allowable only as to appeals in civil cases. Revisal, sec. 597.

Unless the requirements of the statute, both as to time and manner, are complied with, the appeal is not in this Court. The defect is jurisdictional, and we have no power to allow amendments, and the appellee has a right to have the appeal dismissed. State v. Bramble, 121 N. C., 603; State v. Galewood, 125 N. C., 695, and numerous cases there cited.

The defendant, however, when the case was called, asked to be considered as ajjpealing under bond, and to make the deposit *660 now, in lieu of bond, in this Court, as allowed by Revisal, sec. 593, if “good cause is shown.” We think such cause has been shown, and, the deposit in lieu of bond having been made, the case will be heard. 'As, under the circumstances, the record and brief have not been printed, the cause will be set for hearing at the close of the call of causes from the Eighth District, that the printing may be done, as required in all except pauper appeals.

Motion allowed.

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Pee Curiam :

The defendant attempted to appeal in forma pauperis. The affidavits were such as required by the statute (Revisal, sec. 3278), but the order allowing the appeal without giving bond was not signed by the judge, as required by Revisal, sec. 3279, but by the clerk. This latter is allowable only as to appeals in civil cases. Revisal, sec. 597.

Unless the requirements of the statute, both as to time and manner, are complied with, the appeal is not in this Court. The defect is jurisdictional, and we have no power to allow amendments, and the appellee has a right to have the appeal dismissed. State v. Bramble, 121 N. C., 603; State v. Galewood, 125 N. C., 695, and numerous cases there cited.

The defendant, however, when the case was called, asked to be considered as ajjpealing under bond, and to make the deposit *660 now, in lieu of bond, in this Court, as allowed by Revisal, sec. 593, if “good cause is shown.” We think such cause has been shown, and, the deposit in lieu of bond having been made, the case will be heard. 'As, under the circumstances, the record and brief have not been printed, the cause will be set for hearing at the close of the call of causes from the Eighth District, that the printing may be done, as required in all except pauper appeals.

Motion allowed.

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65 S.E. 762, 151 N.C. 659, 1909 N.C. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-parish-nc-1909.

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