Williams v. Asheville Contracting Company

130 S.E.2d 340, 259 N.C. 232, 1963 N.C. LEXIS 538

Opinion

Bobbitt, J.

Compliance with the Rules of Practice in the Supreme Court, 254 N.C. 783 et seq.,, is mandatory. Rule 19(1) requires that the pleadings shall be a part of the transcript in all cases. Rule 20(1) provides that memoranda of pleadings will not be received or recognized in the Supreme Court as pleadings, even by consent of counsel. “The absence of the complaint from the record makes it necessary to dismiss the appeal.” Thrush v. Thrush, 245 N.C. 63, 65, 94 S.E. 2d 897, and cases cited.

While the appeal is dismissed for failure to comply with our mies, we deem it appropriate to say: In our view, the facts alleged in paragraph 7 of the complaint in this (second) action are substantially the same as those alleged in paragraph 7 of the complaint in the first action. The court below presumably -based decision on “the recognized principle that -a judgment for defendant on a general demurrer to the merits, where it stands unappealed from and unreversed, is an estoppel as to the cause of -action set up in the pleadingjs, as effective as if the issuable matters arising in the pleadings had -been established by a verdict.” Swain v. Goodman, 183 N.C. 531, 533, 112 S.E. 36; Jones v. Mathis, 254 N.C. 421, 425, 119 S.E. 2d 200, and cases cited.

Appeal dismissed.