West v. G.D. Reddick, Inc.

268 S.E.2d 235, 48 N.C. App. 135, 1980 N.C. App. LEXIS 3213

• Court: Court of Appeals of North Carolina
• Decided: August 5, 1980
• Docket: 8023DC144
• Status: Published

Opinions

MARTIN (Harry C.), Judge.

In his brief plaintiff appellant presents the question for our review as follows: Did the trial court err in allowing the defendant’s motion for judgment on the pleadings based upon the three-year statute of limitations? On the record before us in this case, we must answer this question in the negative.

The date of the filing of the complaint is 28 November 1978. The date of the alleged accident is 25 July 1974. The face of the complaint itself discloses that the applicable three-year period for bringing negligence actions has expired. We discover, however, from defendant’s answer that on 15 September 1977 plaintiff took a voluntary dismissal without prejudice, but again the complaint reveals that this action was not brought within the one-year period prescribed in N.C.G.S. 1A-1, Rule 41(a)(2). Clearly, based upon the pleadings, the court correctly dismissed plaintiff’s action.

In his oral argument counsel for appellant sharpened the question for review as follows: When does the one-year period under Rule 41(a)(2) commence if there has been an appeal taken from the order allowing the voluntary dismissal? Because we hold that this narrower question is not properly before the Court at this time, we decline to answer it.

Appellant informs us in his brief and in oral argument that in response to Judge Kivett’s signing an order allowing plaintiff’s voluntary dismissal on 15 September 1977, defendant appealed from that order, and that the Court of Appeals filed an opinion affirming the order 17 October 1978. He argues that by instituting this case on 28 November 1978, only forty-two days after that filing date, plaintiff timely filed his complaint under Rule 41(a)(2).

Appellant’s crucial problem is that the record in this case fails to disclose such subsequent history of the prior action. There is not the slightest hint in the record that an appeal was taken from the voluntary dismissal. In fact, the only mention of the voluntary dismissal itself is made by the defendant, not the plaintiff appellant. The Court of Appeals can judicially know only what appears of record. In re Sale of Land of Warrick, 1 N.C. App. 387, 161 S.E. 2d 630 (1968). Appellant’s brief is not a part of the record on appeal. Civil Service Bd. v. Page, 2 N.C. App. 34, 162 S.E. 2d 644 (1968). Matters discussed in a brief but not found in the record will not be considered by this Court. Warrick, supra. It is incumbent upon the appellant to see that the record is properly made up and transmitted to the appellate court. Mooneyham v. Mooneyham, 249 N.C. 641, 107 S.E. 2d 66 (1959).

Although this defect in the record on appeal was repeatedly pointed out to appellant’s counsel at oral argument, he failed to move the Court either to amend the record or to take judicial notice of such facts contained in our records which might support appellant’s argument. The matters appellant argues simply are not before us.

The trial court properly granted defendant’s motion for judgment on the pleadings.

Affirmed.

Judge Martin (Robert M.) concurs. Judge Hedrick dissents.