Thrush v. Thrush

Supreme Court of North Carolina

Thrush v. Thrush

94 S.E.2d 897, 245 N.C. 63, 1956 N.C. LEXIS 513

Supreme Court of North Carolina·Decided November 21, 1956·No. 165·Published·Cited by 5 cases

Opinion

HiggiNs, J.

Eule No. 19 of the Eules of Practice in the Supreme Court provides that pleadings, issues and judgment shall be a part of the transcript in all cases. Eule 20 provides that memoranda of pleadings will not be received or recognized in the Supreme Court as pleadings, even by consent of counsel. The record in this case does not contain the complaint. The trial judge took its contents into account in his findings of fact. Exceptions were duly taken both to the court’s findings and to its refusal to make requested findings. On review here, therefore, this Court, in the absence of the complaint, cannot have before it all the evidence upon which the court based its findings. The absence of the complaint from the record makes it necessary to dismiss the appeal. This procedure has been uniform since Allen v. Hammond, 122 N.C. 754, 30 S.E. 16. The decisions of this Court following the Hammond case are collected and analyzed in Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; and since that decision the rule has been observed in Gardner v. Moose, 200 N.C. 88, 156 S.E. 243; Lipe v. Stanly County, 200 N.C. 92, 156 S.E. 243; Riggan v. Harrison, 203 N.C. 191, 165 S.E. 358; Armstrong v. Service Stores, 203 N.C. 231, 165 S.E. 680; Parks v. Seagraves, 203 N.C. 647, 166 S.E. 747; Payne v. Brown, 205 N.C. 785, 172 S.E. 348; S. v. Lumber Co., 207 N.C. 47, 175 S.E. 713; Goodman v. Goodman, 208 N.C. 416, 181 S.E. 328; Abernethy v. Trust Co., 211 N.C. 450, 190 S.E. 735; 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; Campbell v. Campbell, 226 N.C. 653, 39 S.E. 2d 812; Macon v. Murray, 240 N.C. 116, 81 S.E. 2d 126; Griffin v. Barnes, 242 N.C. 306, 87 S.E. 2d 560.

The foregoing citation of authority is intended to emphasize the uniform holding that compliance with the rule is mandatory.

In dismissing the appeal this Court does not affirm the order entered by Judge Moore on 14 April, 1956, but leaves it as if no appeal had been taken. Whether the findings of fact and conclusions of law are supported by the evidence, and whether that order modifies, changes or overrules Judge Frizzelle’s prior order, are questions not decided on this appeal.

Appeal dismissed.

*66 Joi-iNSON, J., not sitting.

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HiggiNs, J.

Eule No. 19 of the Eules of Practice in the Supreme Court provides that pleadings, issues and judgment shall be a part of the transcript in all cases. Eule 20 provides that memoranda of pleadings will not be received or recognized in the Supreme Court as pleadings, even by consent of counsel. The record in this case does not contain the complaint. The trial judge took its contents into account in his findings of fact. Exceptions were duly taken both to the court’s findings and to its refusal to make requested findings. On review here, therefore, this Court, in the absence of the complaint, cannot have before it all the evidence upon which the court based its findings. The absence of the complaint from the record makes it necessary to dismiss the appeal. This procedure has been uniform since Allen v. Hammond, 122 N.C. 754, 30 S.E. 16. The decisions of this Court following the Hammond case are collected and analyzed in Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; and since that decision the rule has been observed in Gardner v. Moose, 200 N.C. 88, 156 S.E. 243; Lipe v. Stanly County, 200 N.C. 92, 156 S.E. 243; Riggan v. Harrison, 203 N.C. 191, 165 S.E. 358; Armstrong v. Service Stores, 203 N.C. 231, 165 S.E. 680; Parks v. Seagraves, 203 N.C. 647, 166 S.E. 747; Payne v. Brown, 205 N.C. 785, 172 S.E. 348; S. v. Lumber Co., 207 N.C. 47, 175 S.E. 713; Goodman v. Goodman, 208 N.C. 416, 181 S.E. 328; Abernethy v. Trust Co., 211 N.C. 450, 190 S.E. 735; 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; Campbell v. Campbell, 226 N.C. 653, 39 S.E. 2d 812; Macon v. Murray, 240 N.C. 116, 81 S.E. 2d 126; Griffin v. Barnes, 242 N.C. 306, 87 S.E. 2d 560.

The foregoing citation of authority is intended to emphasize the uniform holding that compliance with the rule is mandatory.

In dismissing the appeal this Court does not affirm the order entered by Judge Moore on 14 April, 1956, but leaves it as if no appeal had been taken. Whether the findings of fact and conclusions of law are supported by the evidence, and whether that order modifies, changes or overrules Judge Frizzelle’s prior order, are questions not decided on this appeal.

Appeal dismissed.

*66 Joi-iNSON, J., not sitting.

Thrush v. Thrush, 94 S.E.2d 897, 245 N.C. 63, 1956 N.C. LEXIS 513 (N.C. 1956).

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