State v. . Simmerson

Supreme Court of North Carolina

State v. . Simmerson

163 S.E. 571, 202 N.C. 583, 1932 N.C. LEXIS 160

DecidedApril 13, 1932

StatusPublished

This text of 163 S.E. 571 (State v. . Simmerson) 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.

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State v. . Simmerson, 163 S.E. 571, 202 N.C. 583, 1932 N.C. LEXIS 160 (N.C. 1932).

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Opinion

CONNOR, J.

A certified copy of tbe record proper in tbis action bas not been filed in tbis Court, as required by its rules. Rule 19. Tbe transcript contains only a statement of tbe case on appeal prepared by counsel for the defendant, and accepted by tbe solicitor for tbe State. No indictment appears therein; nor does it appear tbat tbe defendant was tried and convicted on a warrant issued by an inferior court, and tbat sbe appealed from tbe judgment of sueb court to tbe Superior Court. There is nothing in tbe transcript which shows tbat tbe Superior Court of Forsyth County bad jurisdiction of tbe action.

In S. v. McDraughon, 168 N. C., 131, 83 S. E., 181, it is said: “Tbe presumption is tbat tbe judgment of tbe Superior Court is correct, and tbe burden is on tbe appellant to show error. As far back as S. v. Butts, 91 N. C., 524, tbe requisites of tbe transcript were pointed out, and in S. v. Frizell, 111 N. C., 725, tbe Court said: 'An appellant does not do bis duty by simply taking an appeal and leaving it to tbe clerk to send up what be may deem necessary. It is tbe appellant’s duty to see tbat tbe record is properly and sufficiently made up and transmitted.’ ”

There is no motion for certiorari in tbis appeal, and in tbe exercise of our discretion, we do not order tbat such writ issue in tbis case. The appeal is dismissed. Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126.

Appeal dismissed.

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CONNOR, J.

A certified copy of tbe record proper in tbis action bas not been filed in tbis Court, as required by its rules. Rule 19. Tbe transcript contains only a statement of tbe case on appeal prepared by counsel for the defendant, and accepted by tbe solicitor for tbe State. No indictment appears therein; nor does it appear tbat tbe defendant was tried and convicted on a warrant issued by an inferior court, and tbat sbe appealed from tbe judgment of sueb court to tbe Superior Court. There is nothing in tbe transcript which shows tbat tbe Superior Court of Forsyth County bad jurisdiction of tbe action.

In S. v. McDraughon, 168 N. C., 131, 83 S. E., 181, it is said: “Tbe presumption is tbat tbe judgment of tbe Superior Court is correct, and tbe burden is on tbe appellant to show error. As far back as S. v. Butts, 91 N. C., 524, tbe requisites of tbe transcript were pointed out, and in S. v. Frizell, 111 N. C., 725, tbe Court said: 'An appellant does not do bis duty by simply taking an appeal and leaving it to tbe clerk to send up what be may deem necessary. It is tbe appellant’s duty to see tbat tbe record is properly and sufficiently made up and transmitted.’ ”

There is no motion for certiorari in tbis appeal, and in tbe exercise of our discretion, we do not order tbat such writ issue in tbis case. The appeal is dismissed. Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126.

Appeal dismissed.

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163 S.E. 571, 202 N.C. 583, 1932 N.C. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simmerson-nc-1932.

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