Opinion
(September Term, 1891.)
Appeal — "Case" — Practice in Supreme Court.
1. It must appear in the record that an appeal was duly taken, otherwise it will be dismissed.
2. If the record shows an appeal, but there is no case on appeal settled (in those cases where such "case" is required), the appeal will not be dismissed, but the judgment below may be affirmed on motion of appellee, if there are no errors in the record proper.
APPEAL from STANLY.
J. A. Lockhart for plaintiff.
Montgomery Crowell (by brief) for defendant.
There is no case on appeal settled by the judge, nor signed by the parties, and nothing to show that any appeal was taken in open court, nor any service of notice if appeal was taken out of court. There is a "case on appeal" signed only by appellant's counsel, but as it does not appear that it was served on appellee within the required time, nor indeed at all, it must be treated as a nullity. Peebles v. Braswell, 107 N.C. 68. The appeal would not be dismissed on this ground, as it may be there are errors on the fact of the record proper, as want of jurisdiction, or complaint not stating a cause of action, and the proper motion and order would be to affirm the judgment. It further fails to appear, however, that an appeal was taken or notice of appeal given. In such case the appeal must be dismissed. Mfg. Co. v. Simmons, 97 N.C. 89. In this last case, it is said: "It does not appear (in the record) that an appeal was taken. It does not so appear in terms, nor is there any entry of record from which it may be inferred. It is not sufficient that the appellant intended to appeal, as perhaps he did, but it must appear of record that he did in fact appeal. This is essential, (103) to make the appeal effective, and put this Court in relation with the Superior Court. The Code, secs. 549, 550; Moore v. Vanderburg, 90 N.C. 10; Spence v. Tapscott, 93 N.C. 250; McCoy v. Lassiter, 94 N.C. 131; Brooks v. Austin, ib., 222."
Appeal dismissed.
Cited: McNeill v. R. R., 117 N.C. 643; Westbrook v. Hicks, 121 N.C. 132; Investment Co. v. Kelly, 123 N.C. 390; Delozier v. Bird, ib., 692.